Friday, December 31, 2010

San Diego California DUI Checkpoint and Drunk Driving Patrol Update

San Diego California' Winter Holiday Anti-DUI crackdown by multiple cop agencies in San Diego County will be conducting DUI checkpoints and directed DUI Saturation enforcement during the New Year’s Eve weekend.

Details are planned in the following cities.

Thurs, Dec 30th DUI Saturation Patrol, 2000-0300, City of Poway
Thurs, Dec 30th, DUI/DL Checkpoint, 1900-0300, City of Carlsbad
Fri, Dec 31st, DUI/DL Checkpoint, 1900-0300, City of Coronado
Fri, Dec 31st, DUI Saturation Patrol, 2000-0300, City of La Mesa
Fri, Dec 31st, DUI Saturation Patrol, 2000-0300, City of Poway
Sat, Jan 1st, DUI/CDL Checkpoint, 1900-0300, City of Lemon Grove
Sat, Jan 1st, DUI/CDL Checkpoint, 1900-0300, City of Chula Vista
Sat, Jan 1st, DUI Saturation Patrol, 2000-0300, City of Poway
Sun, Dec 2nd, DUI/CDL Checkpoint, 1900-0300, City of Chula Vista

Friday, New Year’s Eve
• Vista Station – Gunshot detail (extra patrols for reports of gunshots on New
Year’s Eve) and San Diego California DUI saturation patrols. Please call Lt. E.J. Brock at (760) 300-9912.

• Imperial Beach Station – ABC grant detail and saturation patrols. Please call Sgt.
Michael Leathers at (619) 498-2412.

Saturday, New Year’s Day
• Lemon Grove Station – San Diego county DUI Checkpoint. Please call Sgt. Peggy Frailey at (619)987-0297.

Thursday, December 30, 2010

Avoid a DUI Conviction this New Year's Weekend by following these practice pointers given by an established California DUI lawyer

Driving in California is always a major crap-shoot & substantial risk New Year's Eve weekend if you plan on having an alcoholic beverage or more.

Begin by checking your travel route. You can avoid DUI checkpoints in a number of Southern California and San Diego locations if you first check this San Diego DUI Lawyer's Checkpoint Warning site.

Then find your California driver's license, automobile registration and proof of insurance. Put on the very top of your glove compartment together, or somewhere easily accessible, so the required proof items are ready to be presented to any California peace officer.

If stopped, these 3 items are all you have to give the California cop.

Most importantly, you do not have to talk to a California DUI officer. Politely avoid giving them information as you have the right to remain silent, privilege against self-incrimination and right to an attorney. (Under the Implied Consent Law, remember you only need to give a big breath test or blood test if arrested for DUI. You do not have the right to a lawyer before deciding which drunk driving test - blood or big breath - to submit to.)

If a California DUI officer pulls you over, stop immediately and safely. Roll down your window and put your hands on the steering wheel.

If the California DUI officer asks you if you know why you are being pulled over, remember you do not have to answer. Do not make any admissions. "Officer, I completely respect what you do as your occupation. And I would love to help you do your job. However, on advice of legal counsel, I do not want to answer any of your questions." (If there was a legitimate reason to stop you, you will see it in the police report after any drunk driving arrest.)

A California DUI officer next question usually is: "Have you had anything to drink?" You are not required to answer. The California DUI cop is simply gathering evidence. Please do not give the California DUI copy anything to put in that report that she or he can use against you.

The California DUI cop most likely will order you to get out and then say something like "I'd like you to complete a series of tests for me." You have heard about these acrobatics or gymnastics called Field Sobriety Tests. Please remind the California DUI cop you do not wish to participate in any eye or field coordination tests. You are not required to comply (except you must submit to the Implied Consent big breath machine or blood test if arrested). California DUI cops are trained to write down things to try to show you are impaired. Why help them?

A California DUI will try to get you to blow into a hand-held breath test gadget. This is a small gadget held in the officer's hand, usually kept in the patrol car trunk or inside compartment. Do not take this Preliminary Alcohol Screening (PAS) test. It is not the required Implied Consent test.

Regardless, the California DUI cop will arrest you anyway, handcuff you and take you somewhere for a big breath test machine or blood test, with one exception. Many San Diego Police Department California DUI officers have a big breath test machine in their trunk - if so, you must take that Implied Consent test (but not the little, hand-held gadget).

Which DUI test? Breath tests are generally less reliable and less accurate. California DUI police must follow proper protocol including a 15 minute continuous observation before you blow to make sure you do not have a slight burp, belch or regurgitation of gas which could mix in with your deep lung air sample and contaminate your blow, creating a falsely elevated reading. Also,if you are still absorbing beer or wine, the breath test will read high. The breath test is an estimate, an indirect measurement of blood alcohol level.

If you give blood, there is more protocol including the required mixing of your blood vial after your blood is drawn. You will not get a result for at a very long time. Many San Diego California police agencies do not use a proper minimum amount of sodium fluoride in the blood vials. Your California DUI Lawyer can then show the integrity of the sample was not maintained.

Do not give both blood and breath, under any circumstances, as you do not have to.

You should received a pink DMV Order of Suspension. Your California DUI criminal defense attorney must contact DMV within 10 days of the arrest or the Department of Morons & Villains will otherwise suspend your driver's license from California or your privilege to operate a motor vehicle in this state which may then reciprocate with your home state.

Beware of Southern California & San Diego DUI Checkpoints, lawyers warn

Like Santa's Helpers, California DUI Criminal Defense Attorney has put alot of energy into these holidays, warning folks of San Diego DUI Checkpoints and Southern California Drunk Driving Roadblocks. Se here:

San Diego DUI Lawyer Warnings of New Year's Checkpoints



If you end up caught in a California DUI checkpoint, you can still get help at this DUI Defense Site

- a free helpful online DUI consultation

so drive carefully in California this weekend.

Wednesday, December 29, 2010

San Diego California DUI arrests are down but you're still one of them

San Diego California DUI arrests are down but you're still one of them.

Here's Your help now.

DUI Attorney Rick Mueller received in 2010 a 10 out of 10 - Rating as a San Diego Drunk Driving Lawyer and premier San Diego DUI & DMV Defense Attorney.

Here's why: start at this magical point - fill out

San Diego DUI Lawyer


San Diego DUI



Tuesday, December 28, 2010

The crap that sometimes comes out of the Department of Morons & Villains is often best exemplified by virtue of the ridiculous fact that the HO

The crap that sometimes comes out of the Department of Morons & Villains is often best exemplified by virtue of the ridiculous fact that the HO (Hearing Officer)acts as both prosecutor and judge.

That would be kind of like if someone wanted to be Jack Kevorkian only because they were also the mortician.

It gets worse; it's also like if they own the cemetary.

As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, decide against your California DMV lawyer, and admit or not admit either party's evidence which means admit DMV's evidence but deny any weight to driver's evidence.

That's not the end of it. Your attorney can still win.

That's because the California Driver Safety Officer offers evidence in the form of documents and/or witnesses.

The San Diego Hearing Officer usually goes with the DUI police report, DMV records, DUI alcohol reports and the important DUI officer's problematic sworn statement called a "DS 367."

A DUI lawyer's strategies & approaches at the DMV hearing are technical.

California DUI / DMV proof problems are bases for not affirming a suspension.

California Lawyer DUI

Monday, December 27, 2010

DC may have been falsely accused of driving under the influence of alcohol (DUI) for a decade as a result of faulty "Intoxilyzer" breath tests

DC folks were falsely accused of drunk driving (DUI) for more than a decade as a result of faulty "Intoxilyzer" breath testing equipment.

Ilmar Paegle, a veteran police officer now working as a contract employee for the District Department of Transportation, argued in a memorandum to the city's attorney general that the breath testing machines have not been properly calibrated since 2000.

To date, the District has only admitted to bogus breathalyzer results taken between September 2008 and February 4, 2010. Of 1100 cases prosecuted in that period, 300 were convicted based on evidence provided by faulty machines.

"As a result of the miscalibration the instruments apparently produced results that were outside the acceptable margin of error to be considered accurate," Deputy DC Attorney General Robert J. Hildum wrote in a June 4 letter to DC trial lawyers. "OAG [office of the attorney general] is in the process of notifying the defendants and their counsel in those cases."

Paegle's discovery that the breathalyzers producing bogus results forced the Metropolitan Police Department to stop using the machines on February 4 and switch to Intoximeters. Hildum blamed the problems on Officer Kelvin King who began replacing motors in the breathalyzers in September 2008 as part of routine maintenance. Under DC law, the machines must be tested for accuracy every three months, but the District failed to codify procedures or standards for this testing. Paegle was concerned that the District has never performed these accuracy tests, raising concern among legal experts.

"You too could have been pulled over on the basis of a minor traffic violation and put through a series of difficult and humiliating field sobriety tests," DC-based defense attorney Jamison Koehler wrote on his law firm's blog. "After blowing into the breath test machine, you could have spent the night in a jail cell with other people who were drunk, angry, disorderly, mentally ill or whose sweating, panting and retching signaled to you that they going through drug withdrawal. You could have had to shell out thousands of dollars to hire a lawyer and missed work on so many occasions to attend court hearings that your employer warned you might be fired.... On the basis of the faulty breath test results, you too have been convicted of driving while intoxicated even with blood alcohol levels far below the legal limit."

Nevada Prior DUI / Drunk Driving / DWI cannot be used against someone in California,

This DUI / DMV case recently said this Nevada prior may not not being used in California. If so, DUI lawyers can ask that it be removed.

Sunday, December 26, 2010

If you are drunk, take a cab or get a sober driver. Do not risk it. California DUI police are out in full force & effect, searching for drunk drivers

If you are drunk, take a cab or get a sober driver. Do not risk it. California DUI police are out in full force & effect, searching for drunk drivers,lawyers believe.

California Highway Patrol, the DUI enforcement kings, remind folks this time if year, more DUI drivers are out there and that if you see one, call him or her in, attorneys are told.

During Christmas weekend 2009, 22 people were killed in accidents and more than 1,100 drivers were arrested for a California DUI.

With all the possible DUI fine & program revenue involved, that's why CHP and other law enforcement agencies will be focusing on drunk drivers this weekend and New Year's Eve 2010.

Friday, December 24, 2010

Don't Let the DUI Cops In Your House this California Christmas - "Community Caretaker" Drunk Driving Exception Takes a Hit

Wisconsin v. Ultsch follows in the great long line of DUI cases after Wisconsin v. Welsh.

This drunk driving case features a vehicle collision and a brick building.

Said vehicle had left the scene of the accident and was found at the beginning of a one-quarter mile long driveway of a private residence located two to three miles away.

An officer observed damage to the vehicle's front left fender. No blood was observed at or near the car, the scene, or the snow.

While the officers were at the bottom of the driveway, a vehicle came down the driveway from the home driven by an individual who identified himself as the owner of the home.

The individual indicated that the driver of the damaged vehicle was his girlfriend and that she was up at the house “possibly in bed or asleep,” but he declined to identify who she was.

When the officers got up to the house, they knocked on the door without a response.

The officer discovered that the door was unlocked, and entered the house and made his way to the bedroom in the far rear of the house, where he found Ultsch in bed asleep. Contact ultimately led to DUI arrest.

The police claim entry was justified under the community caretaking exception to the 4th amendment. Under Wisconsin's approach, to determine whether an officers conduct properly falls within the scope of the community caretaker exception to the Fourth Amendments warrant requirement based on home entry, the court must determine:
(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.

The appeals court then stated as follows:

When the officers traveled up the one-quarter mile long driveway that Ultsch had apparently walked up a short time before, they did not notice any blood in the snow nor did anyone testify to any other indication that the driver needed assistance. In fact, except for the fact that she had been involved in a collision some time before-a collision which had only damaged the left front fender of her large, heavy SUV-the officers had no indication whatsoever that Ultsch might need assistance.

We conclude, therefore, that there was not an “objectively reasonable basis” to believe that Ultsch was in need of assistance.


Finally, the court stated:

Even if we determined that the police were exercising a bona fide community caretaker function when they entered Ultsch's residence, the entry would not fall within the community caretaker exception to the Fourth Amendment. It fails under the third and final inquiry, “whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.”




Slip Copy, 2010 WL 5186055 (Wis.App.)

Only the Westlaw citation is currently available.

NOTICE: FINAL PUBLICATION DECISION PENDING. SEE W.S.A. 809.23.

Court of Appeals of Wisconsin.
STATE of Wisconsin, Plaintiff-Respondent,
v.
Kathleen A. ULTSCH, Defendant-Appellant.

No. 2010AP895-CR.
Dec. 23, 2010.

Appeal from a judgment of the circuit court for Marquette County: Richard O. Wright, Judge. Reversed and cause remanded.
Before LUNDSTEN, HIGGINBOTHAM and SHERMAN, JJ.


¶ 1 SHERMAN, J.

Kathleen A. Ultsch appeals from a judgment of conviction for operating while intoxicated (OWI), fifth offense, contrary to Wis. Stat. § 346.63(1)(a). FN1 Ultsch argues the circuit court erred in denying her motion to suppress evidence obtained when police officers entered her house without a warrant and subsequently detained her and placed her under arrest. The circuit court denied the motion, concluding that the warrantless entry into the house was justified under the community caretaker exception to the general rule that warrantless searches and seizures violate the Fourth Amendment to the United States Constitution. We disagree and thus reverse the circuit court's denial of Ultsch's motion to suppress and remand for further proceedings.

FN1. All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.


BACKGROUND
¶ 2 In the early morning of January 1, 2008, Marquette County Deputy Sheriff Jeffrey J. Tomlin was dispatched to the scene of a motor vehicle collision involving a Dodge Durango and a brick building. The brick wall of the building was caved in at the doorway. The damage to the building was substantial enough that the occupant of the building was concerned about the structural integrity of the building. The vehicle had left the scene of the accident and was found at the beginning of a one-quarter mile long driveway of a private residence located two to three miles away. Tomlin observed damage to the vehicle's front left fender.

¶ 3 The driveway where the SUV was found was covered in “deep snow” and Ultsch had walked up the one-quarter mile long driveway, leaving the Dodge Durango at the foot of the driveway partially in the roadway. Police cars could not negotiate the driveway under those conditions. While the officers were at the bottom of the driveway, a vehicle came down the driveway from the home driven by an individual who identified himself as the owner of the home. The individual indicated that the driver of the damaged vehicle was his girlfriend and that she was up at the house “possibly in bed or asleep,” but he declined to identify who she was. After the boyfriend left, a detective in a four-wheel-drive vehicle arrived and Tomlin and other officers drove up to the house. Tomlin did not see any blood in the snow as they drove up the one-quarter mile long driveway.

¶ 4 According to Tomlin, when the officers got up to the house, he “[k]nocked on the door and announced that [he] was from the Sheriff's Department.” When there was no answer at the door, Tomlin “tried the knob” and discovered that the door was unlocked. Tomlin entered the house and made his way to the bedroom in the far rear of the house, where he found Ultsch in bed asleep.

¶ 5 Tomlin woke Ultsch and questioned her. Tomlin then transported Ultsch to the Sheriff's Department where he had Ultsch perform field sobriety tests and had her submit to a chemical test of her breath. Ultsch was subsequently placed under arrest.

¶ 6 Ultsch moved the circuit court to “suppress all evidence obtained as a result of the illegal entry, detention, and arrest.” The Court denied the motion, ruling that the “entry into the house and seizure of [Ultsch were] justified pursuant to the deputy's community caretaker duties.”

¶ 7 The State later amended the criminal complaint to allege felony fifth offense OWI, replacing the originally charged misdemeanor fourth offense. Thereafter a preliminary examination was held, after which Ultsch moved the circuit court for reconsideration of its denial of her motion to suppress. The court denied her motion, ruling: “I think that it was a caretaker function and it was properly exercised as his paramount concern.”

¶ 8 Following the denial of her motion for reconsideration, Ultsch pled no contest to operating a motor vehicle while under the influence of an intoxicant, fifth or subsequent offense. Ultsch appeals. Additional facts will be set forth in our discussion below as necessary.

DISCUSSION
A. Standard of Review
¶ 9 The standard of review for searches and seizures based on the “community caretaker function” is:

Whether police conduct constitutes a violation of the Fourth Amendment or Article I, Section 11 of the federal and state Constitutions is a question of constitutional fact that we review independently. Accordingly, we independently review whether an officer's community caretaker function satisfies the requirements of the Fourth Amendment and Article I, Section 11 of the federal and state Constitutions.

State v. Kramer, 2009 WI 14, ¶ 16, 315 Wis.2d 414, 759 N.W.2d 598 (internal citations omitted).

B. Community Caretaker Function Exercised in Residence
¶ 10 “Subject to a few well-delineated exceptions, warrantless searches are deemed per se unreasonable under the Fourth Amendment,” and Article I, Section 11 of the Wisconsin Constitution. State v. Faust, 2004 WI 99, ¶ 11, 274 Wis.2d 183, 682 N.W.2d 371.FN2 One of those exceptions may arise when a police officer is serving as a community caretaker to protect persons or property.FN3 State v. Pinkard, 2010 WI 81, ¶ 14, 327 Wis.2d 346, 785 N.W.2d 592.

FN2. The United States Supreme Court has stated that “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).


FN3. “Although a multitude of activities fall within the community caretaker function, not every intrusion that results from the exercise of a community caretaker function will fall within the community caretaker exception to permit a warrantless entry into a home.” State v. Pinkard, 2010 WI 81, ¶ 20, 327 Wis.2d 346, 785 N.W.2d 592.


¶ 11 In Cady v. Dombrowski, 413 U.S. 433 (1973), and subsequently in South Dakota v. Opperman, 428 U.S. 364 (1976), the United States Supreme Court upheld warrantless searches of automobiles. In both cases, the court “relied on the diminished expectation of privacy in automobiles as part of its rationale for permitting the officers' search to secure the car's contents.” FN4 Pinkard, 327 Wis.2d 346, ¶ 17.

FN4. The Wisconsin Supreme Court has also applied the community caretaker doctrine to the warrantless roadside seizure of an automobile. See State v. Kramer, 2009 WI 14, ¶ 1, 315 Wis.2d 414, 759 N.W.2d 598.


¶ 12 In Pinkard, the Wisconsin Supreme Court held that “under certain circumstances a reasonably exercised community caretaker function may permit a warrantless entry into a home.” Id., ¶ 28. The court observed, however, that “ ‘for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars,’ ... a warrantless search of a car deemed reasonable may be unreasonable in the context of a search of a home.” Id., ¶ 16 (quoted source omitted). Calling the warrantless entry into a residence “more suspect” than the search or seizure of a car under the community caretaker function, the court explained:

Whether a given community caretaker function will pass muster under the Fourth Amendment so as to permit a warrantless home entry depends on whether the community caretaker function was reasonably exercised under the totality of the circumstances of the incident under review.

Id., ¶ 20

¶ 13 To determine whether an officers conduct properly falls within the scope of the community caretaker exception to the Fourth Amendments warrant requirement based on home entry, we must determine:

(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.

Id., 29.

C. Application of the Three-Step Test
i. Search
¶ 14 The Wisconsin Supreme Court has recently held that a warrantless unconsented entry into a residence is a search for purposes of the Fourth Amendment and satisfies the first element of the community caretaker analysis. Id., ¶ 30. As in Pinkard, the warrantless unconsented entry into Ultsch's residence satisfies this test.

ii. Bona Fide Community Caretaker
¶ 15 Wisconsin courts “carefully examine[ ] the expressed concern for which the community caretaker function was undertaken to determine if it was bona fide.” Id., ¶ 26. The question is whether there is an “objectively reasonable basis” to believe there is “a member of the public who is in need of assistance.” Kramer, 315 Wis.2d 414, ¶¶ 30, 32. In this case, the expressed concern was for Ultsch's “well-being” following the accident. Therefore, the question here is whether the police had an objectively reasonable belief that the driver of the Dodge Durango was in the home and in need of assistance.

¶ 16 In Pinkard, the supreme court found that this second test was met when police entered a residence acting on an anonymous tip that two people “appeared to be sleeping” in a room with cocaine, money and a digital scale while the door to the residence stood wide open. Pinkard, 327 Wis.2d 346, ¶ 2.

¶ 17 The facts in this case are substantially different than those in Pinkard. In Pinkard, the vulnerability of the occupants of the residence was arguably more obvious. The supreme court reasoned that, with the door open and the occupants unresponsive, the occupants could easily have been victims of a crime or suffering from an overdose. Id., ¶ 37. In either of those situations, time might be essential in avoiding loss of life.

¶ 18 The supreme court characterized the circumstances in Pinkard as a “close case.” Id., ¶ 33. In the present case, the police had less reason to be concerned. Had the officers found Ultsch sitting or sleeping in the parked vehicle, the circumstances arguably could have given rise to the caretaker function. See Kramer, 315 Wis.2d 414, ¶ 4. However, warrantless entry into a residence is subjected to stricter scrutiny. See Pinkard, 327 Wis.2d 346, ¶ 20.

¶ 19 When Tomlin arrived at Ultsch's parked Dodge Durango, the condition of the vehicle, viewed alone, was not such as to give rise to concern for Ultsch's safety. The damage, though significant, was limited to the vehicle's left front fender. The airbags had not deployed, the windshield was intact, there was no damage to the passenger compartment or to the driver's side door, and there was no blood or other indication of injury.

¶ 20 In addition, no person had given officers information that would indicate that Ultsch was in a vulnerable situation, nor did they observe anything that would indicate she was injured. When officers encountered the man who owned the residence where Ultsch lived, he told them that Ultsch was possibly asleep. FN5 The officers did not ask the man about Ultsch's condition and “[h]e didn't mention her needing any assistance.”

FN5. In Pinkard, the callers indicated that the condition of the persons might be something less benign than merely sleep, stating that they “appeared to be sleeping.” Pinkard, 327 Wis.2d 346, ¶ 2.


¶ 21 When the officers traveled up the one-quarter mile long driveway that Ultsch had apparently walked up a short time before, they did not notice any blood in the snow nor did anyone testify to any other indication that the driver needed assistance. In fact, except for the fact that she had been involved in a collision some time before-a collision which had only damaged the left front fender of her large, heavy SUV-the officers had no indication whatsoever that Ultsch might need assistance.

¶ 22 We conclude, therefore, that there was not an “objectively reasonable basis” to believe that Ultsch was in need of assistance. See Kramer, 315 Wis.2d 414, ¶ 30.

iii. Public Interest Versus Intrusion Upon Privacy
¶ 23 Even if we determined that the police were exercising a bona fide community caretaker function when they entered Ultsch's residence, the entry would not fall within the community caretaker exception to the Fourth Amendment. It fails under the third and final inquiry, “whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.” Pinkard, 327 Wis.2d 346, ¶ 29.

¶ 24 To satisfy the third inquiry, the officer's exercise of the bona fide community caretaker function must have been reasonable. Id., ¶ 41.

To make this determination, we balance the public interest or need that is furthered by the officers' conduct against the degree and nature of the intrusion on the citizen's constitutional interest. “The stronger the public need and the more minimal the intrusion upon an individual's liberty, the more likely the police conduct will be held to be reasonable.”

Id. (quoted source omitted).

¶ 25 We consider four factors in our consideration. Id., ¶ 42. The first factor is the extent of the public's interest. Id. In the current case, in addition to the facts discussed above, Ultsch drove two miles in a snowstorm and walked one-quarter mile up the driveway. Her boyfriend expressed no concern for her condition. There was good reason to believe she was intoxicated and almost no reason to think that she was in distress. Compared with the wide open door and vulnerability of the occupants in Pinkard, there is very little indication of any danger to Ultsch.

¶ 26 The second factor is the attendant circumstances surrounding the search. Id. These include the time, location, and the degree of overt force and authority displayed. Id. In the present case the door was unlocked and no force was displayed, but the degree of overt authority displayed was considerable. Ultsch was at home, asleep in her bedroom at 9:00 a.m. and Tomlin entered her bedroom and awakened her.

¶ 27 The third factor is whether the search or seizure took place in an automobile. Id. This factor does not apply because the search in this case took place in a residence.

¶ 28 The final factor evaluates the alternatives that were available to the action taken. Id. The primary alternative available to the officers in this case was to rely on the representation of Ultsch's boyfriend that Ultsch was sleeping in the light of the limited damage to the vehicle, the absence of evidence of injury to the driver, and the exigent circumstances discussed above, and do nothing.

¶ 29 Having reviewed each of the four factors, we conclude that in this case the public's interest in the intrusion was minimal, at best, and did not outweigh the substantial intrusion on Ultsch's privacy.

CONCLUSION
¶ 30 For the foregoing reasons, we conclude that, under the totality of the circumstances, the State has not established that the warrantless entry into Ultsch's residence satisfied the community caretaker exception and, therefore, we reverse the decision of the circuit court denying Ultsch's motion to suppress evidence and remand to the circuit court for further proceedings. FN6

FN6. The parties did not brief and we do not address the precise consequences of reversing the circuit court's suppression decision. We note that when police illegally enter and illegally arrest a defendant in a home, the exclusionary rule does not necessarily bar evidence later obtained away from the home. See New York v. Harris, 495 U.S. 14, 20-21 (1990).


Judgment reversed and cause remanded.

Thursday, December 23, 2010

Drinking Way Through Christmas? Sober folks don't get a California DUI arrest

52% of 200 men surveyed by Men's Health say they drink more during the holidays.

In mixing booze with festivities, remember moderation & the designated driver.

A California DUI is the last thing you want. Trying to find a good attorney over Christmas is not easy either.

66% of the men were drunk at a holiday work party.

26% drunkenly hooked up with coworkers after the holiday party. Who knows how many were DUI.

72% remained sober at a holiday party where alcohol was served. So it's possible.

Tuesday, December 21, 2010

Overview of California DMV Hearing after a DUI arrest & attack on DS 367 link to Avvo

California DMV Hearing Officers introduce evidence in the form of documents and/or witnesses.

In San Diego, the Driver Safety Officer offers the drunk driving / DUI police report, DMV records, DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." Read more about that on Avvo.com !

Unreasonable & Unfair as it is, California DMV's HO's can legally object to your evidence, rule on her or his own objection,and admit or not admit either party's evidence.


In San Diego California, the DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing.

The San Diego DMV / DMV suspension can be set aside or sustained.

If a San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by a lawyer filing a San Diego DMV petition for writ of mandamus.


Monday, December 20, 2010

California law is tough on DUI but also on second degree murder involving malice, gross vehicular manslaughter & evading a California police car

California law is tough on DUI but also on second degree murder involving malice, gross vehicular manslaughter, evading a California police officer causing death, etc.

This California driver went on a car chase that ended up killing someone.

At the California trial, the Prosecuting attorney introduced two of his prior convictions for evading a police officer with willful disregard for safety and property., to establish that he knew of the consequences of his acts.

Affirming on appeal, the court stated:

“A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving-whether intoxication, rage, or wilful irresponsibility-the driver's subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” ( People v. Ortiz, supra, 109 Cal.App.4th at p. 115.) Regardless of the reason for the reckless driving, it is the “ ‘crashing of cars and the killing of people’ “ that increases a defendant's subjective awareness of the perils of driving badly. ( Id. at p. 116.)

The court also implied that prior instances of drunk driving could be admissible in cases involving recklessness (such as reckless homicide or reckless driving or manslaughter):

"[S]pecifically, a “defendant's knowledge-gained in the course of the prior misconduct-of the natural consequences, dangerous to life, of the reckless operation of a motor vehicle, and of his persistence in that behavior” evinces a “conscious disregard for the lives of others on the road.” ( People v. Ortiz, supra, 109 Cal.App.4th at pp. 111-112.) In other words, when a person repeatedly violates the law by driving recklessly and the person is repeatedly apprehended and convicted for those violations, that person presumably becomes more aware of the dangerous consequences of his or her driving."

Because there is no mental state in a regular DUI charge, this theory would not allow priors to be admitted for such purposes.

There are states do allow priors into the guilt phase of a trial to prove other things, such as habit, lawyers note.

Court of Appeal, Fourth District, Division 1, California.
The PEOPLE, Plaintiff and Respondent,
v.
LOPEZ, Defendant and Appellant.

No. D055697.
(Super.Ct.No. FSB046888).
Nov. 22, 2010.

APPEAL from a judgment of the Superior Court of San Bernardino County, Colin J. Bilash, Judge. Affirmed in part; reversed in part; modified in part.
Office of the State Attorney General, San Diego, CA, for Plaintiff and Respondent.

Christine Vento, Los Angeles, CA, for Defendant and Appellant.

BENKE, J.

*1 A jury convicted Graciano Lopez of second degree murder (count 1, Pen.Code,FN1 § 187, subd. (a)); gross vehicular manslaughter (count 2, § 192, subd. (c)(1)); evading a police officer causing death (count 3, Veh.Code, § 2800.3); failing to perform a legal duty after an accident that caused death (count 4, Veh.Code, § 20001, subd. (a)); carjacking (count 5, § 215, subd. (a)); resisting arrest (count 6, § 69); and driving on the wrong side of a divided highway causing injury (count 8, Veh.Code, § 21651, subd. (c)). The jury also found as to count 2 that Lopez fled the scene after committing the offense ( Veh.Code, § 20001, subd. (c)).

FN1. All further statutory references are to the Penal Code unless otherwise specified.


The court sentenced Lopez to prison for an indeterminate term of 15 years to life (count 1), and determinate terms of nine years (count 5), one year eight months (count 3), and one year (count 4). Two-year terms as to counts 6 and 8 were made concurrent. The sentence on count 2 was stayed.

On appeal, Lopez contends the court: (1) abused its discretion and violated Lopez's due process rights when it admitted evidence of his prior driving-related offenses; (2) erred when it sentenced Lopez under the 2009 edition (rather than the 2004 edition) of Vehicle Code section 2800.3, subdivision (a); and (3) erred when it did not stay Lopez's sentences for evading police (count 3), failing to perform a legal duty after an accident causing death (count 4), and driving on the wrong side of a divided highway (count 8).

We conclude the court did not abuse its discretion when it admitted two of Lopez's four prior driving-related offenses. Further, any error was harmless. We conclude the court erred when it sentenced Lopez under the 2009 edition of Vehicle Code section 2800.3, subdivision (a), rather than the 2004 edition. Finally, we conclude the court did not err when it imposed consecutive sentences for evading a police officer and failing to perform a legal duty after an accident causing death. However, the court should have stayed the sentence for driving on the wrong side of a divided highway causing injury.

FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez Evades Police and Drives the Wrong Way on the Freeway
On November 10, 2004, at around 11:00 p.m., San Bernardino County Deputy Sheriff Deon Filer was patrolling in his marked police car. Just as he passed under the Interstate 10 (I-10) freeway, Filer saw a dark-colored car run a red light while making an illegal right turn from the left-hand lane. The car then passed by Filer, who was travelling in the opposite direction. Filer estimated the two cars were going 15 miles per hour and were no more than 10 feet apart. In the lighting from streetlamps and headlights, Filer made eye contact with the driver, who he described as being “exceptionally larger than the passenger.”

Filer activated his lights and siren, made a U-turn and followed the car, which ran another red light and turned onto the I-10 freeway on-ramp. At the far end of the ramp, the car slowed and pulled over to the right side. Filer assumed the driver was acknowledging the traffic stop. But instead of stopping, the car made a U-turn into the lane closest to the on-ramp and began to drive against oncoming freeway traffic. As the car passed by Filer's police car, its passenger compartment was illuminated from oncoming headlights. Filer estimated the two cars were 20 yards apart and stated he could see the driver's face. Filer later identified the driver as Lopez and the passenger as Christopher Holguin.

*2 As Lopez made the U-turn and began to drive the wrong way on the freeway, oncoming traffic swerved out of the way. Filer did not follow Lopez onto the freeway because it was too dangerous. Instead, he drove to the opposite side of the freeway to look for Lopez's car. At that time, Filer saw Lopez's car crash into another car that was going up another on-ramp to the I-10 freeway.

B. Lopez's Attempted Flight and Carjacking
Rick Carbajal drove his van up an on-ramp to the I-10 freeway and came upon the head-on collision. Lopez approached Carbajal from the direction of the collision, limping and saying, “Help me. Help me. My son is in the car.” Lopez was crying and appeared to be in pain. He did not seem to be providing assistance to anyone else. Carbajal got out of his van and began to walk toward the accident. At this time, Lopez jumped into the driver's seat of Carbajal's van and closed the door “like he was going [to] drive away.” Carbajal tried to grab the keys through the open window, but Lopez pushed and elbowed him. Lopez drove Carbajal's van up the on-ramp until he reached the two crashed cars. He then stopped the van and got out. Carbajal tried to re-take his van, but Lopez returned and got back in. Carbajal turned, saw arriving police officers and yelled, “He's trying to carjack my car” or “He's taking my van.”

C. Officers Arrive at the Crash Site
Colton Police Lieutenant Noel DeDianous was the first officer to arrive at the crash site. When DeDianous arrived, he saw Carbajal pointing to a white van, saying, “He's stealing my van.” DeDianous ordered Lopez to stop the van. Lopez initially stopped and put his hands up, but then reached for the gearshift. DeDianous tried to open the van's door by reaching inside the open window. Lopez attempted to push him away. A struggle ensued. During the struggle, a second officer arrived and shot Lopez with a taser, allowing DeDianous to unlock the van's door.

The two officers were then joined by two San Bernardino County Sheriff's detectives, who assisted the officers in dragging Lopez out of the van. Lopez continued to struggle, swinging and kicking, until the four secured Lopez on the ground in handcuffs.

After DeDianous assisted in handcuffing Lopez, he approached victim Christopher Surjadjaja's car. Surjadjaja's condition was “real bad.” Blood and yellow fluids were coming from his ears, nose, and mouth and he was slumped over and making a gurgling noise. DeDianous climbed into the back seat, brought Surjadjaja's head and neck to an upright position to open his airway and waited for paramedics.

Officers also found Holguin lying unconscious 10 feet down the side of the embankment.

D. Lopez's Identity as the Driver
California Highway Patrol Officer Omar Hernandez identified Lopez at the crash site and later contacted him at Loma Linda University Medical Center. Hernandez observed bruising on the right side of Lopez's stomach where the seat belt buckle would have been. From that area, the bruising extended slightly upwards at a diagonal, indicative of a driver's side seat belt. Filer noted Lopez had an abrasion across his stomach, consistent with injury from a lap belt seatbelt. He also saw an abrasion on Lopez's left collarbone, indicative of a driver's side seat belt.

*3 Rebecca L. Zook-McGrath, a nurse at Loma Linda University Hospital, documented the emergency room observations of Lopez's injuries. On a body diagram sketch, she drew a rectangular shape from left shoulder to right hip and wrote “possible seat belt abrasion, light.” Zook-McGrath stated at trial that although she has seen many seat belt injuries, she always writes “possible” because only a physician can diagnose. Dr. Leistiko, a resident, did not indicate bruising on Lopez's chest in his records.

Monica Siewertsen, a criminalist with the San Bernardino County Sheriff's Department, extracted DNA from blood samples taken from the blood stained areas of Lopez's car. She processed the samples in part to determine on which side of the car Lopez and Holguin were sitting at the time of the crash. Results indicated that Holguin's blood was found on the driver's seat, front passenger seat, front passenger's seat belt and the rear passenger's seat. Lopez's blood was found on both the driver and passenger side air bags and his blood was a possible secondary source of DNA on the front passenger's seat.

E. Death of Victim
Surjadjaja was taken to Loma Linda Medical Center, where he died after two months of treatment. His cause of death was blunt force head trauma sustained in the collision.

F. Lopez's Prior Driving-Related Offenses
On the evening of March 15, 1995, police pursued Lopez as he drove a stolen car. Lopez fled from the police at 80 to 90 miles per hour on the busy I-10 freeway and approximately 60 miles per hour on the curved on-ramp to the I-605 freeway. On the on-ramp, other cars were forced to swerve and stop. Once Lopez reached the Interstate 605 (I-605) freeway, he accelerated to 80 to 90 miles per hour and swerved from the number five lane to the number one lane, then back to the number five lane. At the Valley Boulevard off-ramp, Lopez struck a car and hit the guardrail, disabling his car. As a result of the March 15, 1995 incident, Lopez was convicted of evading an officer with willful disregard for safety or property.

On December 29, 1995, Baldwin Park School District Police Officer Stephen Bayne located a car matching the description of a recently stolen car. Bayne followed the car as it turned into a parking lot and stopped. Bayne got out of his patrol car, drew his gun and ordered the four occupants to show their hands. Instead of following the officer's orders, Lopez, who was driving, sped out of the parking lot. A pursuit ensued. Lopez drove erratically on the busy, multi-lane street, then transitioned so that he was driving westbound in the eastbound lanes. Lopez entered the off-ramp to the I-605 freeway. Once on the freeway, he continued driving in the wrong direction. To avoid oncoming traffic, Lopez swerved back and forth across three different lanes.

A quarter mile down the I-605 freeway, Lopez made a U-turn and entered the I-10 freeway, traveling in the correct direction. However, as Lopez entered the flow of traffic, he suddenly made a left turn across several lanes of traffic and began driving westbound in the eastbound lanes. He continued traveling the wrong way for another half-mile, swerving to avoid heavy oncoming traffic. Eventually, Lopez's car collided head-on with a mini-van. As a result of the December 29, 1995 incident, Lopez was convicted of evading an officer with willful disregard for safety and property and of driving on the wrong side of a highway, causing injury.

DISCUSSION
I

Evidence of Lopez's Prior Convictions

*4 Lopez contends the court abused its discretion when it admitted evidence of two of his prior convictions for evading a police officer with willful disregard for safety and property. Specifically, Lopez claims that evidence of his prior driving-related offenses was not probative of implied malice, was cumulative, and was unduly prejudicial, violating his due process rights. We conclude the court properly admitted the prior offenses on the issue of implied malice, an element of second degree murder. We further conclude that any error was harmless.

A. Trial Court Proceedings
Before trial, the prosecution sought to introduce evidence of four of Lopez's prior driving-related offenses. The prosecutor argued that evidence of Lopez's prior violations for evading a police officer tended to show he was subjectively aware of the dangerous consequences that can occur as a result of recklessly fleeing the police, and that Lopez's repetition of this behavior showed a conscious disregard for the lives of others.

Defense counsel objected to the admission of Lopez's prior driving-related offenses. While conceding that the prior offenses had significant probative value, counsel argued the evidence was unduly prejudicial. Because identity of the driver was a core issue in the case, counsel argued the jury would surely consider the proffered evidence for improper purposes.

Defense counsel also objected to the admission of Lopez's prior driving-related offenses on cumulative grounds. Specifically, counsel argued: “[A]nybody in their right mind wouldn't do that [drive the wrong direction on the freeway], and would know that's inherently dangerous without bringing in the fact that he's done it before[.][¶] My point is that [the prosecutor] can still make that argument without bringing in any of these priors. Whereas once these priors are in, I don't think the jury is going to believe anybody other than Mr. Lopez did this crime.”

The court first confirmed with defense counsel that malice was a disputed issue. The court then stated that Lopez's prior driving-related offenses seemed highly probative of his knowledge and appreciation of risk, issues which were relevant to a finding of implied malice for second degree murder.

In response to defense counsel's argument that the evidence was cumulative, the court observed: “To me the strength of [the prosecution's argument] is that there are so many [prior driving-related offenses]. That's what shows the knowledge. You may have one ... and you go ... I could have gotten killed; I could have gotten into an accident, but then you can dismiss that. People may have one and can never do it again because they appreciate the risk. [¶] But, to have ... four prior incidents where he obvious-apparently, not just obviously, but the strong argument can be made, he doesn't care. He just doesn't care.... [H]e appreciates the danger, but he just keeps on doing it.”

Thus, the court found the evidence was not cumulative.

*5 In weighing the probative value of Lopez's prior driving-related offenses versus their prejudicial effect, the court recognized that as with all character evidence “[t]here is a substantial risk that [the jurors] might get a little distracted ... because they're going to focus on the fact that [Lopez] has all these priors.” “[S]ince ID is a major issue in this case [the priors] could be improperly used....” Thus, the court stated it had to use “extreme caution.”

The court ultimately ruled that the probative value of evidence of Lopez's prior driving-related offenses outweighed its prejudicial effect. However, to minimize prejudice and prevent the jury's improper use of the evidence, the court limited the number of priors to the two that “most specifically [go] to the issue at hand, which is knowledge of the defendant.” Thus, the court admitted evidence of the March 15, 1995 and December 29, 1995 incidents and excluded the two other priors.

Following testimony about the March 15, 1995 incident, the court admonished the jury: “Ladies and gentlemen, ... certain prior acts alleged to have been committed and convictions alleged to have been committed by Mr. Lopez similar to what he is charged with here are allowed to show knowledge and state of mind as to the murder charge only, and only, if you find the defendant guilty, and was the driver, of the evading. [¶] This prior testimony cannot be used to prove or in any way goes to any weight to show or indicate that Mr. Lopez was the driver in this case. [¶] I just remind you-I will remind you again in the case-to keep that in mind that this testimony is only offered for the purpose of knowledge and state of mind of the defendant, if you reach that point in your deliberations .”

Following testimony about the December 29, 1995 incident, the court gave a similar admonishment. In closing instructions, the court again reminded the jury it could only consider evidence of Lopez's prior driving-related offenses for the limited purpose of deciding whether Lopez knew his conduct was dangerous to human life.

B. Standard of Review
We review a trial court's decision to admit evidence over an Evidence Code section 352 objection for an abuse of discretion. ( People v. Jones (1998) 17 Cal.4th 279, 304.) To obtain reversal, the appellant must show that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice. ( Ibid.)

C. Governing Law
In a vehicular homicide case, a second degree murder conviction may be based on implied malice. Malice may be implied “when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created....” ( People v. Watson (1981) 30 Cal.3d 290, 298; People v. Ortiz (2003) 109 Cal.App.4th 104, 110.) In other words, the state of mind for implied malice is “ ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.’ “ ( People v. Olivas (1985) 172 Cal.App.3d 984, 988.) Implied malice is determined by examining the defendant's subjective mental state to see if the defendant actually appreciated the risk of his or her actions. ( People v. David (1991) 230 Cal .App.3d 1109, 1114, citing People v. Watson, supra, 30 Cal.3d at pp. 296-297.) It is not enough that a reasonable person would have been aware of the risk. ( People v. Moore (2010) 187 Cal.App.4th 937.)

*6 Evidence of other crimes is inadmissible to prove a defendant's propensity to commit the crime charged. (Evid.Code § 1101, subd. (a); People v. Guerrero (1976) 16 Cal.3d 719, 724.) “Propensity evidence” is not barred because such evidence is irrelevant. Instead, the evidence has too much probative value, creating a tendency by jurors to believe the defendant is guilty based on the commission of prior acts, irrespective of proof of guilt on the pending charge. ( Id. at p. 725; People v. Ortiz, supra, 109 Cal.App.4th at p. 111.)

Despite the bar on “propensity evidence,” evidence of other crimes, civil wrongs, or other acts is admissible if the evidence logically tends to prove a material element in the People's case, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. (Evid.Code, § 1101, subd. (b); see also People v. Kelley (1967) 66 Cal .2d 232, 239;.) This type of evidence may be admitted if it: “(a) ‘tends logically, naturally and by reasonable inference’ to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People's case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue.” ( People v. Schader (1969) 71 Cal.2d 761, 775, fns. omitted.)

As the trial court here properly noted, evidence of other crimes which points to a defendant's guilt is prejudicial. Therefore, the admissibility of this type of evidence must be examined with care. (See People v. Kelley, supra, 66 Cal.2d at p. 239, citing People v. Peete (1946) 28 Cal.2d 306, 316; People v. Ortiz, supra, 109 Cal.App.4th at p. 116.) Under Evidence Code section 352, if the probative value of the other crimes evidence is substantially outweighed by undue prejudice, it should be excluded. ( People v. Brogna (1988) 202 Cal.App.3d 700, 709-719.)

D. Evidence of Lopez's Prior Driving-Related Offenses is Probative of Implied Malice and Was Not Cumulative
Lopez's first argument, as we understand it, is that prior instances of reckless driving should only be admissible in driving under the influence (DUI) cases. He points out that because of their intoxication, it cannot be assumed drunk drivers know they are driving recklessly. Thus, the prior convictions of DUI defendants are relevant because they tend to show DUI defendants were aware of the dangers of their conduct. Because sober drivers know their behavior is dangerous, Lopez suggests prior convictions have little bearing on their mental state. Accordingly, Lopez contends introducing evidence of his prior driving-related offenses in a case in which he was not intoxicated was error. We disagree.

Preliminarily, we note that a defendant's pattern of reckless driving before his or her involvement in a fatal crash is probative of the implied malice required for a conviction of second degree murder. Specifically, a “defendant's knowledge-gained in the course of the prior misconduct-of the natural consequences, dangerous to life, of the reckless operation of a motor vehicle, and of his persistence in that behavior” evinces a “conscious disregard for the lives of others on the road.” ( People v. Ortiz, supra, 109 Cal.App.4th at pp. 111-112.) In other words, when a person repeatedly violates the law by driving recklessly and the person is repeatedly apprehended and convicted for those violations, that person presumably becomes more aware of the dangerous consequences of his or her driving.

*7 “A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving-whether intoxication, rage, or wilful irresponsibility-the driver's subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” ( People v. Ortiz, supra, 109 Cal.App.4th at p. 115.) Regardless of the reason for the reckless driving, it is the “ ‘crashing of cars and the killing of people’ “ that increases a defendant's subjective awareness of the perils of driving badly. ( Id. at p. 116.)

As the trial court here properly recognized, the more driving-related offenses Lopez accrued, the greater the likelihood he appreciated the risks of his reckless conduct. This is true regardless of Lopez's state of intoxication. Thus, proof of Lopez's prior reckless driving and its consequences was admissible to show that Lopez knew the risks inherent in driving the wrong way on the freeway, yet continued to do so in “wanton disregard for life.” ( People v. Watson, supra, 30 Cal.3d at p. 298.) We conclude there is no merit to Lopez's contention that prior instances of reckless driving should only be admissible in DUI cases.

Lopez next contends that evidence of his two prior driving-related offenses should have been excluded as cumulative. He argues that because driving against the flow of oncoming freeway traffic is so obviously dangerous to the driver, passengers, and other motorists, evidence that Lopez has previously engaged in this activity is cumulative. We disagree.

Although common sense suggests that driving the wrong way on the freeway is extremely dangerous, the mens rea for second degree murder is a subjective determination of the defendant's actual knowledge-not a reasonable person standard. ( People v. David, supra, 230 Cal.App.3d at p. 1114.) Here, defense counsel told the court Lopez was contesting the issue of implied malice. As such, the People had the burden of proving Lopez subjectively appreciated the risks of his reckless conduct. Limiting proof of Lopez's awareness of the consequences of his driving to an “everybody knows this type of driving is reckless” inquiry would exclude material evidence which bears directly on Lopez's actual state of mind as opposed to inferences to be drawn solely from what a reasonable person might understand under the circumstances. In short, evidence of Lopez's prior reckless driving was necessary to the People's case and not merely cumulative. (See People v. Eagles (1982) 133 Cal.App.3d 330, 340.)

E. Evidence of Lopez's Prior Reckless Driving was Not Unduly Prejudicial
The admissibility of Lopez's prior driving-related offenses was fully litigated in the trial court over the course of multiple hearings. The record shows that the court recognized that admission of Lopez's prior offenses could influence the jury's determination of his guilt, since identity of the driver was in dispute. The record also reveals that the court did in fact use “extreme caution” in weighing the probative value of this evidence against its inherent prejudice under Evidence Code section 352. We conclude the court did not abuse its discretion in admitting Lopez's prior driving-related offenses.

*8 We begin by noting that the court did not admit the proffered evidence in its entirety. The People requested admission of four of Lopez's prior driving-related offenses. However, the court only admitted the two incidents in which a collision had occurred, believing these incidents to be the most probative to the issue in the case-whether Lopez's knowledge of his reckless driving showed a conscious disregard for life.

Comparable cases have upheld the admission of much more potentially prejudicial evidence. (See People v. Ortiz, supra, 109 Cal.App.4th 104 [court upheld admission of three prior DUI convictions, one traffic citation, one call from a citizen about the defendant's reckless driving, one opinion by the defendant's co-worker that the defendant drove recklessly and evidence that the defendant had participated in a mandatory DUI educational program, despite the fact that the defendant had not been drinking at the time of the offense]; People v. Eagles, supra, 133 Cal.App.3d 330 [court upheld admission of the defendant's reckless driving the day before the fatal accident]; People v. McCarnes (1986) 179 Cal.App.3d 525 [court upheld admission of four prior DUI convictions]; People v. Moore, supra, 187 Cal.App.4th at p. 943 [court upheld admission of the circumstances underlying defendant's prior DUI conviction, despite no evidence of intoxication at the time of the charged offense, as the “jury could reasonably conclude that his prior conviction put him on notice of the consequences of driving with extreme recklessness”].

Moreover, the prejudicial impact of Lopez's prior driving-related offenses was diminished because the conduct underlying these offenses was less inflammatory than Lopez's conduct during the charged offenses. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [potential for prejudice decreased as jury's passions were not likely inflamed by evidence of the defendant's less serious uncharged conduct].) Here, testimony about the March 15, 1995 incident showed Lopez was the driver in a high speed pursuit on the freeway. The pursuit ended when Lopez attempted to get off the freeway, striking another car and hitting the guardrail. Testimony about the December 29, 1995 incident showed Lopez was the driver in a police pursuit in which Lopez drove on the wrong side of the street and two freeways, eventually leading to a head-on collision with a mini-van. Although Lopez's conduct was clearly reckless in both these incidents, neither resulted in death. Thus, evidence of these prior offenses was not as inflammatory as the evidence in the current offense.

Further, the jury was informed that Lopez's conduct during both the March 15, 1995 and the December 29, 1995 incidents resulted in convictions. The fact that Lopez was convicted lessens the prejudicial impact of his prior driving-related offenses. “Although such evidence is always prejudicial, the impact was minimized by proof of the [prior] conviction. It validated the evidence and minimized the chance a jury would punish [Lopez] for the prior offense, for which he had already been punished.” (See People v. Kelley (1997) 52 Cal.App.4th 568, 579.)

*9 Finally, the record shows that the trial court repeatedly informed the jury that it could not use evidence of Lopez's prior driving-related offenses to decide if Lopez was the driver in the current case. Only if the jury found Lopez to be the driver in the instant case, could it then consider Lopez's prior offenses to determine whether he knew his present conduct was dangerous to human life. We presume the jury followed the trial court's limiting instruction. ( People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)

Thus, we conclude that admitting evidence of two of Lopez's four prior driving-related offenses was not unduly prejudicial nor “ ‘ “arbitrary, capricious, or patently absurd.” ‘ “ (See People v. Jones, supra, 17 Cal.4th at p. 304.)

F. Harmless Error
We note that the trial court used “extreme caution” when it balanced the People's right to introduce evidence of Lopez's implied malice against the possibility of juror misuse.FN2 Indeed, the record shows that the court dedicated substantial time to this issue, admitted only two of Lopez's four prior offenses, and gave the jury limiting instructions that we presume the jury was able to follow. (See People v. Williams, supra, 79 Cal.App.4th at p. 1171.)

FN2. Although Lopez properly recognizes that the standard framework for admitting other crimes evidence is if there is no doubt that a defendant has committed an act, but some question as to his intent in doing so, this framework is not an absolute rule. (See People v. Guerrero, supra, 16 Cal.3d at p. 726.) There is no authority prohibiting the use of prior offenses where identity is an issue.


Nonetheless, even if the trial court erred by admitting the challenged evidence, we conclude any error was harmless. It is not reasonably probable a result more favorable to Lopez would have been reached in the absence of error. FN3 (See People v. Watson, supra, 46 Cal.2d at p. 836.)

FN3. Violations of state evidentiary rules do not generally rise to the level of federal constitutional error. ( People v. Benavides (2005) 35 Cal.4th 69, 91.) Even if we assume the federal harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, applies, any error was harmless.


We begin by recognizing that if Lopez's prior driving-related offenses were prejudicial, they were prejudicial because of the possibility the jury would misuse this evidence to establish Lopez's identity as the driver. However, there was ample evidence other than Lopez's prior driving-related offenses to support the jury's finding that Lopez was the driver. Deputy Filer observed both the driver and passenger before the collision. The first time Filer observed Lopez, the two men were only 10 feet apart. The second time, the passenger compartment of Lopez's car was illuminated from oncoming traffic and Filer testified he could see Lopez's face.

In addition, after the crash, law enforcement and hospital personnel observed driver's-side seat belt abrasions on Lopez's body. Deputy Filer noted Lopez had an abrasion on his left collarbone. Officer Hernandez observed bruising on the right side of Lopez's stomach, which extended diagonally and slightly upward. Nurse Zook-McGrath also documented a seat belt abrasion extending from Lopez's left shoulder to his right hip. All of these observations were consistent with a driver's side seat belt.

Finally, Lopez's attempts to flee the scene after the collision-the “parent in distress” ruse used to carjack Carbajal's van, the struggle with police, and Lopez's failure to assist the people who were injured-show a high degree of consciousness of guilt by the person responsible for the accident, i .e. the driver, not the passenger. Thus, we conclude it is not reasonably probable a result more favorable to Lopez would have been reached had the court excluded the challenged evidence.

II
Ex Post Facto Violation
*10 Lopez contends his sentence under the 2009 version of Vehicle Code section 2800.3, subdivision (a), violated the federal and state ex post facto clauses. The People concede the error and we agree.

Article I, section 10 of the federal Constitution prohibits states from passing an ex post facto law. ( California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 505 [115 S.Ct. 1597] ( Morales ).) The ex post facto clause of the federal Constitution prohibits three legislative categories: legislation “ ‘ “[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law....” ‘ “ ( People v. McVickers (1992) 4 Cal.4th 81, 84.) FN4 Here, we are concerned with the second category of ex post facto violations-the prohibition on increased punishment after the commission of a crime.

FN4. The ex post facto clause of the California Constitution is analyzed identically to its federal counterpart. ( People v. McVickers, supra, 4 Cal.4th at pp. 84, 86.)


Additional jail time falls under the definition of punishment for purposes of the ex post facto clause. ( People v. McVickers, supra, 4 Cal.4th at p. 84.) In Miller v. Florida (1987) 482 U .S. 423 [107 S.Ct. 2446] ( Miller ), the Florida sentencing scheme included a presumptive range for certain offenses, which sentencing courts were required to follow in the absence of “clear and convincing reasons” for a departure. At the time the defendant in Miller committed his crime, the presumptive range was between three and one-half to four and one-half years. However, at the time of sentencing, the range had been legislatively increased to between five and one-half to seven years. The United States Supreme Court held that this resulting increase in the “quantum of punishment” violated the ex post facto clause. ( Id. at pp. 433-434; Morales, supra, 514 U.S. at p. 506.)

Similarly here, when Lopez committed the offense of evading a police officer (in 2004), Vehicle Code section 2800.3, subdivision (a), provided a sentencing structure of three, four or five years. However, when Lopez was sentenced (in 2009), the statute had been amended to provide a sentencing structure of three, five or seven years. The court sentenced Lopez under the amended 2009 version. This resulted in a determinate term of one year eight months for count 3, which was one-third the middle term of five years. Had the court correctly sentenced Lopez under the 2004 statute, one-third the middle term would have resulted in a sentence of one year four months.

This error resulted in an ex post facto violation, as it increased the “quantum of punishment” for a crime after its commission. ( Miller v. Florida, supra, 482 U.S. at p. 434.) Thus, Lopez's sentence on count 3 is reversed and the case remanded to the trial court to resentence him under the 2004 edition of Vehicle Code section 2800.3, subdivision (a).

III
Penal Code Section 654
Lopez contends his sentences for evading a police officer, failing to perform a legal duty after an accident causing death and driving on the wrong side of a divided highway causing injury should have been stayed under section 654. We conclude that substantial evidence supports the court's imposition of consecutive sentences for the counts of evading a police officer and failing to perform a legal duty after an accident causing death. However, we conclude the sentence for driving on the wrong side of a divided highway causing injury should have been stayed.

A. Sentencing Court Proceedings
*11 At sentencing, the court advised Lopez of its tentative decision to impose consecutive sentences for second degree murder, carjacking, evading the police and “leaving the scene of the accident.” The court indicated it intended to impose concurrent terms for gross vehicular manslaughter, resisting arrest and driving on the wrong side of a divided highway causing death.

Defense counsel argued that the sentence for driving on the wrong side of a divided highway should have been stayed under section 654 because the facts underlying this conviction overlapped with the facts for the second degree murder conviction. The court disagreed, and imposed concurrent time because “an argument could be made it's [a] separate and distinct ... particularly aggravated circumstance[ ] of the evading.”

Defense counsel also argued that Lopez's sentence for failing to perform a legal duty after an accident causing death should have been stayed under section 654. Counsel argued that this offense is essentially the same as fleeing the scene, and thus, the same as the carjacking. The court rejected this argument, finding that leaving the scene of an accident is “a separate and distinct crime from the act of the evading and subsequent death and carjacking.”

Finally, defense counsel argued that Lopez's action in fleeing from the police was the cause of the victim's death and his sentence for evading the police should have been stayed.

The prosecutor responded to this argument: “The only thing I notice about the [evading], once [Lopez] got on the freeway and made the U-turn going the wrong direction, Deputy Filer stopped his pursuit [and] went back down the off-ramp. [¶] In many ways Mr. Lopez could have stopped and turned around and started going the wrong (sic) way. He kept on going even though Deputy Filer got off the freeway. The pursuit-in many ways, the immediacy was over, but Mr. Lopez kept on going in the wrong direction, deciding rather than stopping or turning around, he decided to go down the onramp. That is when our victim died.... I think a consecutive sentence is justified.”

The prosecutor continued: “[Y]ou have two different crimes, two different intents here. The evading was the effort and attempt to get away from Deputy Filer. That is one mental state, one intent and desire. [¶] When [Lopez] crashes into Christopher and kills him, that is an entirely separate form of crime. It has nothing to do with the evading, except it came out at the end.... [¶] Just because the death is in the end of the [evading] doesn't change the fact that they are two entirely separate offenses and are punishable separately.”

The court found that Lopez's conviction for second degree murder arose out of his implied malice, not his attempts to evade the police. Thus, the court sentenced Lopez's consecutively on count 3.

B. Governing Law
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of the law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “The purpose of this legislative protection against punishment for multiple violations arising out of an ‘act or omission’ is to insure that a defendant's punishment will be commensurate with his culpability.” ( People v. Perez (1979) 23 Cal.3d 545, 550-551.)

*12 Section 654 applies to necessarily included offenses. It also applies to single acts.FN5 ( Neal v. State of California (1960) 55 Cal.2d 11, 18.) However, few crimes are the result of a single physical act. Thus, section 654 has been applied not only where there is one “act” but also where there is a course of conduct which violates more than one statute, but nevertheless constitutes an indivisible transaction. ( People v. Perez, supra, 23 Cal.3d at p. 551.)

FN5. For example, under section 654 it is not proper to punish both murder and the former crime of abortion, as they both arise under the same act. ( People v. Brown (1958) 49 Cal.2d 577, 590-594, superseded by statute as stated in People v. Burns (1984) 157 Cal.App.3d 185.)


Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on a defendant's intent and objective. ( Neal v. State of California, supra, 55 Cal.2d at p. 19.) On the one hand, if all of a defendant's offenses were incident to one objective, that defendant may be punished for any one of the offenses, but not more than one. ( Ibid.) On the other hand, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. ( People v. Perez, supra, 23 Cal.3d at p. 551.)

It is impossible to adopt a “universal construction which directs the proper application of section 654 in every instance.” ( People v. Beamon (1973) 8 Cal.3d 625, 636.) “[T]he question of whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination, made by the trial court, on the basis of its findings concerning the defendant's intent and objective in committing the acts.... This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.” ( People v. Butler (1986) 184 Cal.App.3d 469, 473, citing People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75.) Thus, a trial court's finding that a particular defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. ( People v. Osband (1996) 13 Cal.4th 722, 730-731.)

C. Sentence for Evading a Police Officer
Lopez contends that his sentence for evading a police officer should have been stayed because it was Lopez's attempt to evade the police that caused the murder. We disagree.

Evading the police was not necessary or incidental to Lopez's conviction for second degree murder. When Lopez refused to stop for Deputy Filer's lights and sirens, it is true his initial intent was to evade the police. In an effort to do so, Lopez entered the freeway, made a U-turn and then drove against oncoming traffic. As the record shows, Lopez's efforts to evade the police were temporarily successful since they caused Deputy Filer to break off his pursuit. Yet despite the fact Lopez was no longer being pursued by police, he chose to continue to drive the wrong way on the freeway. He also chose to drive the wrong way down a single lane on-ramp.

*13 This conduct shows a separate intent from evading the police-the intent to continue a course of reckless driving without regard for the safety of others. “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” ( People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Indeed, it was Lopez's actions after the police pursuit had ended that supported the jury's finding of implied malice.

Thus, Lopez's initial intent to evade the police and his separate intent to continue a course of reckless driving after the police had called off the pursuit were divisible.FN6 Evading the police was not the means of perpetrating the crime of second degree murder. (Cf. Neal v. State of California, supra, 55 Cal.2d 11 [ section 654 precluded the defendant, who attempted to murder a husband and wife by throwing gasoline into their bedroom and igniting it, from punishment for both the arson and the attempted murder, as the arson was simply the means of perpetrating the crime of attempted murder and thus incidental to it].) We conclude substantial evidence supports the court's finding that Lopez had a separate intent and objective in evading the police and in committing second degree murder.

FN6. Lopez cites People v. Sewell (2000) 80 Cal.App.4th 690, superseded by statute as stated in People v. Howard (2005) 34 Cal.4th 1129, for the general proposition that when a defendant is convicted of both murder and evading a police officer causing death in the same incident, the sentence for evading a police officer should be stayed. However, in Sewell the defendant was convicted of second degree felony murder. The underlying felony was evading a peace officer while driving in willful or wanton disregard for safety. The court there held that because evading a police officer causing serious bodily injury or death was a lesser included offense of the second degree felony murder conviction, this sentence was properly stayed. People v. Sewell has no application here because Lopez was not convicted of second degree felony murder like the defendant in that case. Thus, Lopez's conviction for evading a police officer was not subsumed by the underlying charge for his second degree murder conviction.


D. Sentence for Failing to Perform a Legal Duty After an Accident Causing Death
Lopez next contends that his sentence for failing to perform a legal duty after an accident causing death should also be stayed under section 654 because Lopez's intent to avoid apprehension by the police remained constant from the beginning of the chase and did not cease or change when Lopez hit Surjadjaja's car. Again, we disagree.

The record shows that Lopez's initial intent when he entered the freeway was to evade the police. The police pursuit then ended, yet Lopez continued to drive on the wrong side of the freeway until he crashed head-on into Surjadjaja's car. After the collision, Lopez was physically able to get out of his car, but did not assist either his injured passenger or the injured victim. Instead, he embarked on a new course of criminal conduct (carjacking and resisting arrest) that created a new risk of harm to both of the injured individuals. Thus, the court could have reasonably found Lopez harbored the initial intent and objective to evade the police, then harbored a separate intent for the second degree murder conviction, and a wholly different intent once his car hit Surjadjaja's car-the intent to avoid rendering aid to possible victims and to avoid criminal and civil liability for the accident.

In addition to substantial evidence in the record supporting these implied findings, Lopez's blanket assertion that his entire course of conduct had a single intent and objective-to avoid apprehension by the police-is unfounded and inconsistent with the purpose behind section 654. “To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability.” ( People v. Perez, supra, 23 Cal.3d at p. 552.)

*14 This is especially true in a hit and run situation. “[T]he purpose of Penal Code section 654 ... is to insure that a defendant's punishment will be commensurate with his culpability. If multiple punishment is prohibited ... there would be no incentive for a person who causes an accident to stop and render aid as required by Vehicle Code section 20001. In fact, noncompliance would be rewarded. A defendant would suffer no greater criminal liability if he took his chances on escaping than if he stopped and rendered aid. Our Legislature could not and did not intend such an absurd result.” ( People v. Butler, supra, 184 Cal.App.3d at p. 474 [defendant engaged in a divisible course of conduct with separate intents when he caused a fatal accident while under the influence, then left the scene.]

Because substantial evidence in the record supports findings that Lopez's intent in leaving the scene of the accident was separate from his intent in evading the police and from the implied malice required for a finding of second degree murder; and because staying Lopez's sentence for leaving the scene of the accident would not be in line with the policy objectives of section 654, we affirm the sentence on this count.

E. Sentence for Driving on the Wrong Side of a Divided Highway
Finally, Lopez contends his sentence for driving on the wrong side of a divided highway must be stayed under section 654 because Lopez's only intent was to evade the police. The People agree that Lopez's sentence should be stayed on this count. However, the People assert it was Lopez's conduct of driving the wrong way on the freeway, knowing it was dangerous to human life, that formed the principal basis for Lopez's second degree murder conviction. We agree with the People's analysis.

Lopez's act of driving the wrong way on a divided highway was the means used to perpetrate the act of second degree murder, and consequently was incidental to the murder. (See Neal v. State of California, supra, 55 Cal.2d 11.) Thus, the sentence for driving the wrong way on a divided highway must be stayed under section 654.

DISPOSITION
Lopez's sentence on count 3 is reversed and the court is directed to resentence him under the 2004 edition of Vehicle Code section 2800.3, subdivision (a). Further, Lopez's sentence on count 8 is reversed and the court is directed to stay the sentence under Penal Code section 654. In all other respects, the judgment of conviction is affirmed.

WE CONCUR: McCONNELL, P.J., and AARON, J.



Cal.App. 4 Dist.,2010.
People v. Lopez
Not Reported in Cal.Rptr.3d, 2010 WL 4720203 (Cal.App. 4 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)second degree murder involving malice, gross vehicular manslaughter, evading a police officer causing death, and other offenses. He went on a car chase that ended up killing someone. At trial, the state introduced two of his prior convictions for evading a police officer with willful disregard for safety and property., to establish that he knew of the consequences of his acts. Affirming on appeal, the court stated:


“A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving-whether intoxication, rage, or wilful irresponsibility-the driver's subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” ( People v. Ortiz, supra, 109 Cal.App.4th at p. 115.) Regardless of the reason for the reckless driving, it is the “ ‘crashing of cars and the killing of people’ “ that increases a defendant's subjective awareness of the perils of driving badly. ( Id. at p. 116.)

The court also implied that prior instances of drunk driving could be admissible in cases involving recklessness (such as reckless homicide or reckless driving or manslaughter):


"[S]pecifically, a “defendant's knowledge-gained in the course of the prior misconduct-of the natural consequences, dangerous to life, of the reckless operation of a motor vehicle, and of his persistence in that behavior” evinces a “conscious disregard for the lives of others on the road.” ( People v. Ortiz, supra, 109 Cal.App.4th at pp. 111-112.) In other words, when a person repeatedly violates the law by driving recklessly and the person is repeatedly apprehended and convicted for those violations, that person presumably becomes more aware of the dangerous consequences of his or her driving."


Since there is no mental state in a regular DUI charge, this theory would not allow priors to be admitted for such purposes. Nevertheless, some states do allow priors into the guilt phase of a trial to prove other things, such as habit. THOUGHT FOR THE DAY: Could priors be admitted in a refusal case to prove consciousness of guilt, or to establish that the refusal was not the product of mistake?


Not Reported in Cal.Rptr.3d, 2010 WL 4720203 (Cal.App. 4 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
Only the Westlaw citation is currently available.

California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.

Court of Appeal, Fourth District, Division 1, California.
The PEOPLE, Plaintiff and Respondent,
v.
Graciano LOPEZ, Defendant and Appellant.

No. D055697.
(Super.Ct.No. FSB046888).
Nov. 22, 2010.

APPEAL from a judgment of the Superior Court of San Bernardino County, Colin J. Bilash, Judge. Affirmed in part; reversed in part; modified in part.
Office of the State Attorney General, San Diego, CA, for Plaintiff and Respondent.

Christine Vento, Los Angeles, CA, for Defendant and Appellant.

BENKE, J.

*1 A jury convicted Graciano Lopez of second degree murder (count 1, Pen.Code,FN1 § 187, subd. (a)); gross vehicular manslaughter (count 2, § 192, subd. (c)(1)); evading a police officer causing death (count 3, Veh.Code, § 2800.3); failing to perform a legal duty after an accident that caused death (count 4, Veh.Code, § 20001, subd. (a)); carjacking (count 5, § 215, subd. (a)); resisting arrest (count 6, § 69); and driving on the wrong side of a divided highway causing injury (count 8, Veh.Code, § 21651, subd. (c)). The jury also found as to count 2 that Lopez fled the scene after committing the offense ( Veh.Code, § 20001, subd. (c)).

FN1. All further statutory references are to the Penal Code unless otherwise specified.


The court sentenced Lopez to prison for an indeterminate term of 15 years to life (count 1), and determinate terms of nine years (count 5), one year eight months (count 3), and one year (count 4). Two-year terms as to counts 6 and 8 were made concurrent. The sentence on count 2 was stayed.

On appeal, Lopez contends the court: (1) abused its discretion and violated Lopez's due process rights when it admitted evidence of his prior driving-related offenses; (2) erred when it sentenced Lopez under the 2009 edition (rather than the 2004 edition) of Vehicle Code section 2800.3, subdivision (a); and (3) erred when it did not stay Lopez's sentences for evading police (count 3), failing to perform a legal duty after an accident causing death (count 4), and driving on the wrong side of a divided highway (count 8).

We conclude the court did not abuse its discretion when it admitted two of Lopez's four prior driving-related offenses. Further, any error was harmless. We conclude the court erred when it sentenced Lopez under the 2009 edition of Vehicle Code section 2800.3, subdivision (a), rather than the 2004 edition. Finally, we conclude the court did not err when it imposed consecutive sentences for evading a police officer and failing to perform a legal duty after an accident causing death. However, the court should have stayed the sentence for driving on the wrong side of a divided highway causing injury.

FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez Evades Police and Drives the Wrong Way on the Freeway
On November 10, 2004, at around 11:00 p.m., San Bernardino County Deputy Sheriff Deon Filer was patrolling in his marked police car. Just as he passed under the Interstate 10 (I-10) freeway, Filer saw a dark-colored car run a red light while making an illegal right turn from the left-hand lane. The car then passed by Filer, who was travelling in the opposite direction. Filer estimated the two cars were going 15 miles per hour and were no more than 10 feet apart. In the lighting from streetlamps and headlights, Filer made eye contact with the driver, who he described as being “exceptionally larger than the passenger.”

Filer activated his lights and siren, made a U-turn and followed the car, which ran another red light and turned onto the I-10 freeway on-ramp. At the far end of the ramp, the car slowed and pulled over to the right side. Filer assumed the driver was acknowledging the traffic stop. But instead of stopping, the car made a U-turn into the lane closest to the on-ramp and began to drive against oncoming freeway traffic. As the car passed by Filer's police car, its passenger compartment was illuminated from oncoming headlights. Filer estimated the two cars were 20 yards apart and stated he could see the driver's face. Filer later identified the driver as Lopez and the passenger as Christopher Holguin.

*2 As Lopez made the U-turn and began to drive the wrong way on the freeway, oncoming traffic swerved out of the way. Filer did not follow Lopez onto the freeway because it was too dangerous. Instead, he drove to the opposite side of the freeway to look for Lopez's car. At that time, Filer saw Lopez's car crash into another car that was going up another on-ramp to the I-10 freeway.

B. Lopez's Attempted Flight and Carjacking
Rick Carbajal drove his van up an on-ramp to the I-10 freeway and came upon the head-on collision. Lopez approached Carbajal from the direction of the collision, limping and saying, “Help me. Help me. My son is in the car.” Lopez was crying and appeared to be in pain. He did not seem to be providing assistance to anyone else. Carbajal got out of his van and began to walk toward the accident. At this time, Lopez jumped into the driver's seat of Carbajal's van and closed the door “like he was going [to] drive away.” Carbajal tried to grab the keys through the open window, but Lopez pushed and elbowed him. Lopez drove Carbajal's van up the on-ramp until he reached the two crashed cars. He then stopped the van and got out. Carbajal tried to re-take his van, but Lopez returned and got back in. Carbajal turned, saw arriving police officers and yelled, “He's trying to carjack my car” or “He's taking my van.”

C. Officers Arrive at the Crash Site
Colton Police Lieutenant Noel DeDianous was the first officer to arrive at the crash site. When DeDianous arrived, he saw Carbajal pointing to a white van, saying, “He's stealing my van.” DeDianous ordered Lopez to stop the van. Lopez initially stopped and put his hands up, but then reached for the gearshift. DeDianous tried to open the van's door by reaching inside the open window. Lopez attempted to push him away. A struggle ensued. During the struggle, a second officer arrived and shot Lopez with a taser, allowing DeDianous to unlock the van's door.

The two officers were then joined by two San Bernardino County Sheriff's detectives, who assisted the officers in dragging Lopez out of the van. Lopez continued to struggle, swinging and kicking, until the four secured Lopez on the ground in handcuffs.

After DeDianous assisted in handcuffing Lopez, he approached victim Christopher Surjadjaja's car. Surjadjaja's condition was “real bad.” Blood and yellow fluids were coming from his ears, nose, and mouth and he was slumped over and making a gurgling noise. DeDianous climbed into the back seat, brought Surjadjaja's head and neck to an upright position to open his airway and waited for paramedics.

Officers also found Holguin lying unconscious 10 feet down the side of the embankment.

D. Lopez's Identity as the Driver
California Highway Patrol Officer Omar Hernandez identified Lopez at the crash site and later contacted him at Loma Linda University Medical Center. Hernandez observed bruising on the right side of Lopez's stomach where the seat belt buckle would have been. From that area, the bruising extended slightly upwards at a diagonal, indicative of a driver's side seat belt. Filer noted Lopez had an abrasion across his stomach, consistent with injury from a lap belt seatbelt. He also saw an abrasion on Lopez's left collarbone, indicative of a driver's side seat belt.

*3 Rebecca L. Zook-McGrath, a nurse at Loma Linda University Hospital, documented the emergency room observations of Lopez's injuries. On a body diagram sketch, she drew a rectangular shape from left shoulder to right hip and wrote “possible seat belt abrasion, light.” Zook-McGrath stated at trial that although she has seen many seat belt injuries, she always writes “possible” because only a physician can diagnose. Dr. Leistiko, a resident, did not indicate bruising on Lopez's chest in his records.

Monica Siewertsen, a criminalist with the San Bernardino County Sheriff's Department, extracted DNA from blood samples taken from the blood stained areas of Lopez's car. She processed the samples in part to determine on which side of the car Lopez and Holguin were sitting at the time of the crash. Results indicated that Holguin's blood was found on the driver's seat, front passenger seat, front passenger's seat belt and the rear passenger's seat. Lopez's blood was found on both the driver and passenger side air bags and his blood was a possible secondary source of DNA on the front passenger's seat.

E. Death of Victim
Surjadjaja was taken to Loma Linda Medical Center, where he died after two months of treatment. His cause of death was blunt force head trauma sustained in the collision.

F. Lopez's Prior Driving-Related Offenses
On the evening of March 15, 1995, police pursued Lopez as he drove a stolen car. Lopez fled from the police at 80 to 90 miles per hour on the busy I-10 freeway and approximately 60 miles per hour on the curved on-ramp to the I-605 freeway. On the on-ramp, other cars were forced to swerve and stop. Once Lopez reached the Interstate 605 (I-605) freeway, he accelerated to 80 to 90 miles per hour and swerved from the number five lane to the number one lane, then back to the number five lane. At the Valley Boulevard off-ramp, Lopez struck a car and hit the guardrail, disabling his car. As a result of the March 15, 1995 incident, Lopez was convicted of evading an officer with willful disregard for safety or property.

On December 29, 1995, Baldwin Park School District Police Officer Stephen Bayne located a car matching the description of a recently stolen car. Bayne followed the car as it turned into a parking lot and stopped. Bayne got out of his patrol car, drew his gun and ordered the four occupants to show their hands. Instead of following the officer's orders, Lopez, who was driving, sped out of the parking lot. A pursuit ensued. Lopez drove erratically on the busy, multi-lane street, then transitioned so that he was driving westbound in the eastbound lanes. Lopez entered the off-ramp to the I-605 freeway. Once on the freeway, he continued driving in the wrong direction. To avoid oncoming traffic, Lopez swerved back and forth across three different lanes.

A quarter mile down the I-605 freeway, Lopez made a U-turn and entered the I-10 freeway, traveling in the correct direction. However, as Lopez entered the flow of traffic, he suddenly made a left turn across several lanes of traffic and began driving westbound in the eastbound lanes. He continued traveling the wrong way for another half-mile, swerving to avoid heavy oncoming traffic. Eventually, Lopez's car collided head-on with a mini-van. As a result of the December 29, 1995 incident, Lopez was convicted of evading an officer with willful disregard for safety and property and of driving on the wrong side of a highway, causing injury.

DISCUSSION
I

Evidence of Lopez's Prior Convictions

*4 Lopez contends the court abused its discretion when it admitted evidence of two of his prior convictions for evading a police officer with willful disregard for safety and property. Specifically, Lopez claims that evidence of his prior driving-related offenses was not probative of implied malice, was cumulative, and was unduly prejudicial, violating his due process rights. We conclude the court properly admitted the prior offenses on the issue of implied malice, an element of second degree murder. We further conclude that any error was harmless.

A. Trial Court Proceedings
Before trial, the prosecution sought to introduce evidence of four of Lopez's prior driving-related offenses. The prosecutor argued that evidence of Lopez's prior violations for evading a police officer tended to show he was subjectively aware of the dangerous consequences that can occur as a result of recklessly fleeing the police, and that Lopez's repetition of this behavior showed a conscious disregard for the lives of others.

Defense counsel objected to the admission of Lopez's prior driving-related offenses. While conceding that the prior offenses had significant probative value, counsel argued the evidence was unduly prejudicial. Because identity of the driver was a core issue in the case, counsel argued the jury would surely consider the proffered evidence for improper purposes.

Defense counsel also objected to the admission of Lopez's prior driving-related offenses on cumulative grounds. Specifically, counsel argued: “[A]nybody in their right mind wouldn't do that [drive the wrong direction on the freeway], and would know that's inherently dangerous without bringing in the fact that he's done it before[.][¶] My point is that [the prosecutor] can still make that argument without bringing in any of these priors. Whereas once these priors are in, I don't think the jury is going to believe anybody other than Mr. Lopez did this crime.”

The court first confirmed with defense counsel that malice was a disputed issue. The court then stated that Lopez's prior driving-related offenses seemed highly probative of his knowledge and appreciation of risk, issues which were relevant to a finding of implied malice for second degree murder.

In response to defense counsel's argument that the evidence was cumulative, the court observed: “To me the strength of [the prosecution's argument] is that there are so many [prior driving-related offenses]. That's what shows the knowledge. You may have one ... and you go ... I could have gotten killed; I could have gotten into an accident, but then you can dismiss that. People may have one and can never do it again because they appreciate the risk. [¶] But, to have ... four prior incidents where he obvious-apparently, not just obviously, but the strong argument can be made, he doesn't care. He just doesn't care.... [H]e appreciates the danger, but he just keeps on doing it.”

Thus, the court found the evidence was not cumulative.

*5 In weighing the probative value of Lopez's prior driving-related offenses versus their prejudicial effect, the court recognized that as with all character evidence “[t]here is a substantial risk that [the jurors] might get a little distracted ... because they're going to focus on the fact that [Lopez] has all these priors.” “[S]ince ID is a major issue in this case [the priors] could be improperly used....” Thus, the court stated it had to use “extreme caution.”

The court ultimately ruled that the probative value of evidence of Lopez's prior driving-related offenses outweighed its prejudicial effect. However, to minimize prejudice and prevent the jury's improper use of the evidence, the court limited the number of priors to the two that “most specifically [go] to the issue at hand, which is knowledge of the defendant.” Thus, the court admitted evidence of the March 15, 1995 and December 29, 1995 incidents and excluded the two other priors.

Following testimony about the March 15, 1995 incident, the court admonished the jury: “Ladies and gentlemen, ... certain prior acts alleged to have been committed and convictions alleged to have been committed by Mr. Lopez similar to what he is charged with here are allowed to show knowledge and state of mind as to the murder charge only, and only, if you find the defendant guilty, and was the driver, of the evading. [¶] This prior testimony cannot be used to prove or in any way goes to any weight to show or indicate that Mr. Lopez was the driver in this case. [¶] I just remind you-I will remind you again in the case-to keep that in mind that this testimony is only offered for the purpose of knowledge and state of mind of the defendant, if you reach that point in your deliberations .”

Following testimony about the December 29, 1995 incident, the court gave a similar admonishment. In closing instructions, the court again reminded the jury it could only consider evidence of Lopez's prior driving-related offenses for the limited purpose of deciding whether Lopez knew his conduct was dangerous to human life.

B. Standard of Review
We review a trial court's decision to admit evidence over an Evidence Code section 352 objection for an abuse of discretion. ( People v. Jones (1998) 17 Cal.4th 279, 304.) To obtain reversal, the appellant must show that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice. ( Ibid.)

C. Governing Law
In a vehicular homicide case, a second degree murder conviction may be based on implied malice. Malice may be implied “when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created....” ( People v. Watson (1981) 30 Cal.3d 290, 298; People v. Ortiz (2003) 109 Cal.App.4th 104, 110.) In other words, the state of mind for implied malice is “ ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.’ “ ( People v. Olivas (1985) 172 Cal.App.3d 984, 988.) Implied malice is determined by examining the defendant's subjective mental state to see if the defendant actually appreciated the risk of his or her actions. ( People v. David (1991) 230 Cal .App.3d 1109, 1114, citing People v. Watson, supra, 30 Cal.3d at pp. 296-297.) It is not enough that a reasonable person would have been aware of the risk. ( People v. Moore (2010) 187 Cal.App.4th 937.)

*6 Evidence of other crimes is inadmissible to prove a defendant's propensity to commit the crime charged. (Evid.Code § 1101, subd. (a); People v. Guerrero (1976) 16 Cal.3d 719, 724.) “Propensity evidence” is not barred because such evidence is irrelevant. Instead, the evidence has too much probative value, creating a tendency by jurors to believe the defendant is guilty based on the commission of prior acts, irrespective of proof of guilt on the pending charge. ( Id. at p. 725; People v. Ortiz, supra, 109 Cal.App.4th at p. 111.)

Despite the bar on “propensity evidence,” evidence of other crimes, civil wrongs, or other acts is admissible if the evidence logically tends to prove a material element in the People's case, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. (Evid.Code, § 1101, subd. (b); see also People v. Kelley (1967) 66 Cal .2d 232, 239;.) This type of evidence may be admitted if it: “(a) ‘tends logically, naturally and by reasonable inference’ to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People's case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue.” ( People v. Schader (1969) 71 Cal.2d 761, 775, fns. omitted.)

As the trial court here properly noted, evidence of other crimes which points to a defendant's guilt is prejudicial. Therefore, the admissibility of this type of evidence must be examined with care. (See People v. Kelley, supra, 66 Cal.2d at p. 239, citing People v. Peete (1946) 28 Cal.2d 306, 316; People v. Ortiz, supra, 109 Cal.App.4th at p. 116.) Under Evidence Code section 352, if the probative value of the other crimes evidence is substantially outweighed by undue prejudice, it should be excluded. ( People v. Brogna (1988) 202 Cal.App.3d 700, 709-719.)

D. Evidence of Lopez's Prior Driving-Related Offenses is Probative of Implied Malice and Was Not Cumulative
Lopez's first argument, as we understand it, is that prior instances of reckless driving should only be admissible in driving under the influence (DUI) cases. He points out that because of their intoxication, it cannot be assumed drunk drivers know they are driving recklessly. Thus, the prior convictions of DUI defendants are relevant because they tend to show DUI defendants were aware of the dangers of their conduct. Because sober drivers know their behavior is dangerous, Lopez suggests prior convictions have little bearing on their mental state. Accordingly, Lopez contends introducing evidence of his prior driving-related offenses in a case in which he was not intoxicated was error. We disagree.

Preliminarily, we note that a defendant's pattern of reckless driving before his or her involvement in a fatal crash is probative of the implied malice required for a conviction of second degree murder. Specifically, a “defendant's knowledge-gained in the course of the prior misconduct-of the natural consequences, dangerous to life, of the reckless operation of a motor vehicle, and of his persistence in that behavior” evinces a “conscious disregard for the lives of others on the road.” ( People v. Ortiz, supra, 109 Cal.App.4th at pp. 111-112.) In other words, when a person repeatedly violates the law by driving recklessly and the person is repeatedly apprehended and convicted for those violations, that person presumably becomes more aware of the dangerous consequences of his or her driving.

*7 “A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving-whether intoxication, rage, or wilful irresponsibility-the driver's subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” ( People v. Ortiz, supra, 109 Cal.App.4th at p. 115.) Regardless of the reason for the reckless driving, it is the “ ‘crashing of cars and the killing of people’ “ that increases a defendant's subjective awareness of the perils of driving badly. ( Id. at p. 116.)

As the trial court here properly recognized, the more driving-related offenses Lopez accrued, the greater the likelihood he appreciated the risks of his reckless conduct. This is true regardless of Lopez's state of intoxication. Thus, proof of Lopez's prior reckless driving and its consequences was admissible to show that Lopez knew the risks inherent in driving the wrong way on the freeway, yet continued to do so in “wanton disregard for life.” ( People v. Watson, supra, 30 Cal.3d at p. 298.) We conclude there is no merit to Lopez's contention that prior instances of reckless driving should only be admissible in DUI cases.

Lopez next contends that evidence of his two prior driving-related offenses should have been excluded as cumulative. He argues that because driving against the flow of oncoming freeway traffic is so obviously dangerous to the driver, passengers, and other motorists, evidence that Lopez has previously engaged in this activity is cumulative. We disagree.

Although common sense suggests that driving the wrong way on the freeway is extremely dangerous, the mens rea for second degree murder is a subjective determination of the defendant's actual knowledge-not a reasonable person standard. ( People v. David, supra, 230 Cal.App.3d at p. 1114.) Here, defense counsel told the court Lopez was contesting the issue of implied malice. As such, the People had the burden of proving Lopez subjectively appreciated the risks of his reckless conduct. Limiting proof of Lopez's awareness of the consequences of his driving to an “everybody knows this type of driving is reckless” inquiry would exclude material evidence which bears directly on Lopez's actual state of mind as opposed to inferences to be drawn solely from what a reasonable person might understand under the circumstances. In short, evidence of Lopez's prior reckless driving was necessary to the People's case and not merely cumulative. (See People v. Eagles (1982) 133 Cal.App.3d 330, 340.)

E. Evidence of Lopez's Prior Reckless Driving was Not Unduly Prejudicial
The admissibility of Lopez's prior driving-related offenses was fully litigated in the trial court over the course of multiple hearings. The record shows that the court recognized that admission of Lopez's prior offenses could influence the jury's determination of his guilt, since identity of the driver was in dispute. The record also reveals that the court did in fact use “extreme caution” in weighing the probative value of this evidence against its inherent prejudice under Evidence Code section 352. We conclude the court did not abuse its discretion in admitting Lopez's prior driving-related offenses.

*8 We begin by noting that the court did not admit the proffered evidence in its entirety. The People requested admission of four of Lopez's prior driving-related offenses. However, the court only admitted the two incidents in which a collision had occurred, believing these incidents to be the most probative to the issue in the case-whether Lopez's knowledge of his reckless driving showed a conscious disregard for life.

Comparable cases have upheld the admission of much more potentially prejudicial evidence. (See People v. Ortiz, supra, 109 Cal.App.4th 104 [court upheld admission of three prior DUI convictions, one traffic citation, one call from a citizen about the defendant's reckless driving, one opinion by the defendant's co-worker that the defendant drove recklessly and evidence that the defendant had participated in a mandatory DUI educational program, despite the fact that the defendant had not been drinking at the time of the offense]; People v. Eagles, supra, 133 Cal.App.3d 330 [court upheld admission of the defendant's reckless driving the day before the fatal accident]; People v. McCarnes (1986) 179 Cal.App.3d 525 [court upheld admission of four prior DUI convictions]; People v. Moore, supra, 187 Cal.App.4th at p. 943 [court upheld admission of the circumstances underlying defendant's prior DUI conviction, despite no evidence of intoxication at the time of the charged offense, as the “jury could reasonably conclude that his prior conviction put him on notice of the consequences of driving with extreme recklessness”].

Moreover, the prejudicial impact of Lopez's prior driving-related offenses was diminished because the conduct underlying these offenses was less inflammatory than Lopez's conduct during the charged offenses. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [potential for prejudice decreased as jury's passions were not likely inflamed by evidence of the defendant's less serious uncharged conduct].) Here, testimony about the March 15, 1995 incident showed Lopez was the driver in a high speed pursuit on the freeway. The pursuit ended when Lopez attempted to get off the freeway, striking another car and hitting the guardrail. Testimony about the December 29, 1995 incident showed Lopez was the driver in a police pursuit in which Lopez drove on the wrong side of the street and two freeways, eventually leading to a head-on collision with a mini-van. Although Lopez's conduct was clearly reckless in both these incidents, neither resulted in death. Thus, evidence of these prior offenses was not as inflammatory as the evidence in the current offense.

Further, the jury was informed that Lopez's conduct during both the March 15, 1995 and the December 29, 1995 incidents resulted in convictions. The fact that Lopez was convicted lessens the prejudicial impact of his prior driving-related offenses. “Although such evidence is always prejudicial, the impact was minimized by proof of the [prior] conviction. It validated the evidence and minimized the chance a jury would punish [Lopez] for the prior offense, for which he had already been punished.” (See People v. Kelley (1997) 52 Cal.App.4th 568, 579.)

*9 Finally, the record shows that the trial court repeatedly informed the jury that it could not use evidence of Lopez's prior driving-related offenses to decide if Lopez was the driver in the current case. Only if the jury found Lopez to be the driver in the instant case, could it then consider Lopez's prior offenses to determine whether he knew his present conduct was dangerous to human life. We presume the jury followed the trial court's limiting instruction. ( People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)

Thus, we conclude that admitting evidence of two of Lopez's four prior driving-related offenses was not unduly prejudicial nor “ ‘ “arbitrary, capricious, or patently absurd.” ‘ “ (See People v. Jones, supra, 17 Cal.4th at p. 304.)

F. Harmless Error
We note that the trial court used “extreme caution” when it balanced the People's right to introduce evidence of Lopez's implied malice against the possibility of juror misuse.FN2 Indeed, the record shows that the court dedicated substantial time to this issue, admitted only two of Lopez's four prior offenses, and gave the jury limiting instructions that we presume the jury was able to follow. (See People v. Williams, supra, 79 Cal.App.4th at p. 1171.)

FN2. Although Lopez properly recognizes that the standard framework for admitting other crimes evidence is if there is no doubt that a defendant has committed an act, but some question as to his intent in doing so, this framework is not an absolute rule. (See People v. Guerrero, supra, 16 Cal.3d at p. 726.) There is no authority prohibiting the use of prior offenses where identity is an issue.


Nonetheless, even if the trial court erred by admitting the challenged evidence, we conclude any error was harmless. It is not reasonably probable a result more favorable to Lopez would have been reached in the absence of error. FN3 (See People v. Watson, supra, 46 Cal.2d at p. 836.)

FN3. Violations of state evidentiary rules do not generally rise to the level of federal constitutional error. ( People v. Benavides (2005) 35 Cal.4th 69, 91.) Even if we assume the federal harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, applies, any error was harmless.


We begin by recognizing that if Lopez's prior driving-related offenses were prejudicial, they were prejudicial because of the possibility the jury would misuse this evidence to establish Lopez's identity as the driver. However, there was ample evidence other than Lopez's prior driving-related offenses to support the jury's finding that Lopez was the driver. Deputy Filer observed both the driver and passenger before the collision. The first time Filer observed Lopez, the two men were only 10 feet apart. The second time, the passenger compartment of Lopez's car was illuminated from oncoming traffic and Filer testified he could see Lopez's face.

In addition, after the crash, law enforcement and hospital personnel observed driver's-side seat belt abrasions on Lopez's body. Deputy Filer noted Lopez had an abrasion on his left collarbone. Officer Hernandez observed bruising on the right side of Lopez's stomach, which extended diagonally and slightly upward. Nurse Zook-McGrath also documented a seat belt abrasion extending from Lopez's left shoulder to his right hip. All of these observations were consistent with a driver's side seat belt.

Finally, Lopez's attempts to flee the scene after the collision-the “parent in distress” ruse used to carjack Carbajal's van, the struggle with police, and Lopez's failure to assist the people who were injured-show a high degree of consciousness of guilt by the person responsible for the accident, i .e. the driver, not the passenger. Thus, we conclude it is not reasonably probable a result more favorable to Lopez would have been reached had the court excluded the challenged evidence.

II
Ex Post Facto Violation
*10 Lopez contends his sentence under the 2009 version of Vehicle Code section 2800.3, subdivision (a), violated the federal and state ex post facto clauses. The People concede the error and we agree.

Article I, section 10 of the federal Constitution prohibits states from passing an ex post facto law. ( California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 505 [115 S.Ct. 1597] ( Morales ).) The ex post facto clause of the federal Constitution prohibits three legislative categories: legislation “ ‘ “[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law....” ‘ “ ( People v. McVickers (1992) 4 Cal.4th 81, 84.) FN4 Here, we are concerned with the second category of ex post facto violations-the prohibition on increased punishment after the commission of a crime.

FN4. The ex post facto clause of the California Constitution is analyzed identically to its federal counterpart. ( People v. McVickers, supra, 4 Cal.4th at pp. 84, 86.)


Additional jail time falls under the definition of punishment for purposes of the ex post facto clause. ( People v. McVickers, supra, 4 Cal.4th at p. 84.) In Miller v. Florida (1987) 482 U .S. 423 [107 S.Ct. 2446] ( Miller ), the Florida sentencing scheme included a presumptive range for certain offenses, which sentencing courts were required to follow in the absence of “clear and convincing reasons” for a departure. At the time the defendant in Miller committed his crime, the presumptive range was between three and one-half to four and one-half years. However, at the time of sentencing, the range had been legislatively increased to between five and one-half to seven years. The United States Supreme Court held that this resulting increase in the “quantum of punishment” violated the ex post facto clause. ( Id. at pp. 433-434; Morales, supra, 514 U.S. at p. 506.)

Similarly here, when Lopez committed the offense of evading a police officer (in 2004), Vehicle Code section 2800.3, subdivision (a), provided a sentencing structure of three, four or five years. However, when Lopez was sentenced (in 2009), the statute had been amended to provide a sentencing structure of three, five or seven years. The court sentenced Lopez under the amended 2009 version. This resulted in a determinate term of one year eight months for count 3, which was one-third the middle term of five years. Had the court correctly sentenced Lopez under the 2004 statute, one-third the middle term would have resulted in a sentence of one year four months.

This error resulted in an ex post facto violation, as it increased the “quantum of punishment” for a crime after its commission. ( Miller v. Florida, supra, 482 U.S. at p. 434.) Thus, Lopez's sentence on count 3 is reversed and the case remanded to the trial court to resentence him under the 2004 edition of Vehicle Code section 2800.3, subdivision (a).

III
Penal Code Section 654
Lopez contends his sentences for evading a police officer, failing to perform a legal duty after an accident causing death and driving on the wrong side of a divided highway causing injury should have been stayed under section 654. We conclude that substantial evidence supports the court's imposition of consecutive sentences for the counts of evading a police officer and failing to perform a legal duty after an accident causing death. However, we conclude the sentence for driving on the wrong side of a divided highway causing injury should have been stayed.

A. Sentencing Court Proceedings
*11 At sentencing, the court advised Lopez of its tentative decision to impose consecutive sentences for second degree murder, carjacking, evading the police and “leaving the scene of the accident.” The court indicated it intended to impose concurrent terms for gross vehicular manslaughter, resisting arrest and driving on the wrong side of a divided highway causing death.

Defense counsel argued that the sentence for driving on the wrong side of a divided highway should have been stayed under section 654 because the facts underlying this conviction overlapped with the facts for the second degree murder conviction. The court disagreed, and imposed concurrent time because “an argument could be made it's [a] separate and distinct ... particularly aggravated circumstance[ ] of the evading.”

Defense counsel also argued that Lopez's sentence for failing to perform a legal duty after an accident causing death should have been stayed under section 654. Counsel argued that this offense is essentially the same as fleeing the scene, and thus, the same as the carjacking. The court rejected this argument, finding that leaving the scene of an accident is “a separate and distinct crime from the act of the evading and subsequent death and carjacking.”

Finally, defense counsel argued that Lopez's action in fleeing from the police was the cause of the victim's death and his sentence for evading the police should have been stayed.

The prosecutor responded to this argument: “The only thing I notice about the [evading], once [Lopez] got on the freeway and made the U-turn going the wrong direction, Deputy Filer stopped his pursuit [and] went back down the off-ramp. [¶] In many ways Mr. Lopez could have stopped and turned around and started going the wrong (sic) way. He kept on going even though Deputy Filer got off the freeway. The pursuit-in many ways, the immediacy was over, but Mr. Lopez kept on going in the wrong direction, deciding rather than stopping or turning around, he decided to go down the onramp. That is when our victim died.... I think a consecutive sentence is justified.”

The prosecutor continued: “[Y]ou have two different crimes, two different intents here. The evading was the effort and attempt to get away from Deputy Filer. That is one mental state, one intent and desire. [¶] When [Lopez] crashes into Christopher and kills him, that is an entirely separate form of crime. It has nothing to do with the evading, except it came out at the end.... [¶] Just because the death is in the end of the [evading] doesn't change the fact that they are two entirely separate offenses and are punishable separately.”

The court found that Lopez's conviction for second degree murder arose out of his implied malice, not his attempts to evade the police. Thus, the court sentenced Lopez's consecutively on count 3.

B. Governing Law
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of the law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “The purpose of this legislative protection against punishment for multiple violations arising out of an ‘act or omission’ is to insure that a defendant's punishment will be commensurate with his culpability.” ( People v. Perez (1979) 23 Cal.3d 545, 550-551.)

*12 Section 654 applies to necessarily included offenses. It also applies to single acts.FN5 ( Neal v. State of California (1960) 55 Cal.2d 11, 18.) However, few crimes are the result of a single physical act. Thus, section 654 has been applied not only where there is one “act” but also where there is a course of conduct which violates more than one statute, but nevertheless constitutes an indivisible transaction. ( People v. Perez, supra, 23 Cal.3d at p. 551.)

FN5. For example, under section 654 it is not proper to punish both murder and the former crime of abortion, as they both arise under the same act. ( People v. Brown (1958) 49 Cal.2d 577, 590-594, superseded by statute as stated in People v. Burns (1984) 157 Cal.App.3d 185.)


Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on a defendant's intent and objective. ( Neal v. State of California, supra, 55 Cal.2d at p. 19.) On the one hand, if all of a defendant's offenses were incident to one objective, that defendant may be punished for any one of the offenses, but not more than one. ( Ibid.) On the other hand, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. ( People v. Perez, supra, 23 Cal.3d at p. 551.)

It is impossible to adopt a “universal construction which directs the proper application of section 654 in every instance.” ( People v. Beamon (1973) 8 Cal.3d 625, 636.) “[T]he question of whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination, made by the trial court, on the basis of its findings concerning the defendant's intent and objective in committing the acts.... This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.” ( People v. Butler (1986) 184 Cal.App.3d 469, 473, citing People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75.) Thus, a trial court's finding that a particular defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. ( People v. Osband (1996) 13 Cal.4th 722, 730-731.)

C. Sentence for Evading a Police Officer
Lopez contends that his sentence for evading a police officer should have been stayed because it was Lopez's attempt to evade the police that caused the murder. We disagree.

Evading the police was not necessary or incidental to Lopez's conviction for second degree murder. When Lopez refused to stop for Deputy Filer's lights and sirens, it is true his initial intent was to evade the police. In an effort to do so, Lopez entered the freeway, made a U-turn and then drove against oncoming traffic. As the record shows, Lopez's efforts to evade the police were temporarily successful since they caused Deputy Filer to break off his pursuit. Yet despite the fact Lopez was no longer being pursued by police, he chose to continue to drive the wrong way on the freeway. He also chose to drive the wrong way down a single lane on-ramp.

*13 This conduct shows a separate intent from evading the police-the intent to continue a course of reckless driving without regard for the safety of others. “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” ( People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Indeed, it was Lopez's actions after the police pursuit had ended that supported the jury's finding of implied malice.

Thus, Lopez's initial intent to evade the police and his separate intent to continue a course of reckless driving after the police had called off the pursuit were divisible.FN6 Evading the police was not the means of perpetrating the crime of second degree murder. (Cf. Neal v. State of California, supra, 55 Cal.2d 11 [ section 654 precluded the defendant, who attempted to murder a husband and wife by throwing gasoline into their bedroom and igniting it, from punishment for both the arson and the attempted murder, as the arson was simply the means of perpetrating the crime of attempted murder and thus incidental to it].) We conclude substantial evidence supports the court's finding that Lopez had a separate intent and objective in evading the police and in committing second degree murder.

FN6. Lopez cites People v. Sewell (2000) 80 Cal.App.4th 690, superseded by statute as stated in People v. Howard (2005) 34 Cal.4th 1129, for the general proposition that when a defendant is convicted of both murder and evading a police officer causing death in the same incident, the sentence for evading a police officer should be stayed. However, in Sewell the defendant was convicted of second degree felony murder. The underlying felony was evading a peace officer while driving in willful or wanton disregard for safety. The court there held that because evading a police officer causing serious bodily injury or death was a lesser included offense of the second degree felony murder conviction, this sentence was properly stayed. People v. Sewell has no application here because Lopez was not convicted of second degree felony murder like the defendant in that case. Thus, Lopez's conviction for evading a police officer was not subsumed by the underlying charge for his second degree murder conviction.


D. Sentence for Failing to Perform a Legal Duty After an Accident Causing Death
Lopez next contends that his sentence for failing to perform a legal duty after an accident causing death should also be stayed under section 654 because Lopez's intent to avoid apprehension by the police remained constant from the beginning of the chase and did not cease or change when Lopez hit Surjadjaja's car. Again, we disagree.

The record shows that Lopez's initial intent when he entered the freeway was to evade the police. The police pursuit then ended, yet Lopez continued to drive on the wrong side of the freeway until he crashed head-on into Surjadjaja's car. After the collision, Lopez was physically able to get out of his car, but did not assist either his injured passenger or the injured victim. Instead, he embarked on a new course of criminal conduct (carjacking and resisting arrest) that created a new risk of harm to both of the injured individuals. Thus, the court could have reasonably found Lopez harbored the initial intent and objective to evade the police, then harbored a separate intent for the second degree murder conviction, and a wholly different intent once his car hit Surjadjaja's car-the intent to avoid rendering aid to possible victims and to avoid criminal and civil liability for the accident.

In addition to substantial evidence in the record supporting these implied findings, Lopez's blanket assertion that his entire course of conduct had a single intent and objective-to avoid apprehension by the police-is unfounded and inconsistent with the purpose behind section 654. “To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability.” ( People v. Perez, supra, 23 Cal.3d at p. 552.)

*14 This is especially true in a hit and run situation. “[T]he purpose of Penal Code section 654 ... is to insure that a defendant's punishment will be commensurate with his culpability. If multiple punishment is prohibited ... there would be no incentive for a person who causes an accident to stop and render aid as required by Vehicle Code section 20001. In fact, noncompliance would be rewarded. A defendant would suffer no greater criminal liability if he took his chances on escaping than if he stopped and rendered aid. Our Legislature could not and did not intend such an absurd result.” ( People v. Butler, supra, 184 Cal.App.3d at p. 474 [defendant engaged in a divisible course of conduct with separate intents when he caused a fatal accident while under the influence, then left the scene.]

Because substantial evidence in the record supports findings that Lopez's intent in leaving the scene of the accident was separate from his intent in evading the police and from the implied malice required for a finding of second degree murder; and because staying Lopez's sentence for leaving the scene of the accident would not be in line with the policy objectives of section 654, we affirm the sentence on this count.

E. Sentence for Driving on the Wrong Side of a Divided Highway
Finally, Lopez contends his sentence for driving on the wrong side of a divided highway must be stayed under section 654 because Lopez's only intent was to evade the police. The People agree that Lopez's sentence should be stayed on this count. However, the People assert it was Lopez's conduct of driving the wrong way on the freeway, knowing it was dangerous to human life, that formed the principal basis for Lopez's second degree murder conviction. We agree with the People's analysis.

Lopez's act of driving the wrong way on a divided highway was the means used to perpetrate the act of second degree murder, and consequently was incidental to the murder. (See Neal v. State of California, supra, 55 Cal.2d 11.) Thus, the sentence for driving the wrong way on a divided highway must be stayed under section 654.

DISPOSITION
Lopez's sentence on count 3 is reversed and the court is directed to resentence him under the 2004 edition of Vehicle Code section 2800.3, subdivision (a). Further, Lopez's sentence on count 8 is reversed and the court is directed to stay the sentence under Penal Code section 654. In all other respects, the judgment of conviction is affirmed.

WE CONCUR: McCONNELL, P.J., and AARON, J.


Cal.App. 4 Dist.,2010.
People v. Lopez
Not Reported in Cal.Rptr.3d, 2010 WL 4720203 (Cal.App. 4 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)

California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.