26 Cal.App.5th 408
Cal. Ct. App.2018Background
- On August 16, 2014, Melissa Ho rear-ended one vehicle, then about an hour later struck people standing by a tow truck on I-880, killing William Sampson and injuring Michael Andrade. Ho was charged with vehicular manslaughter with gross negligence (Pen. Code § 192(c)(1)) and reckless driving with great bodily injury (Veh. Code § 23104(b)).
- Ho had attended an all-night party where alcohol and various drugs were present; witnesses testified others warned her not to drive but she left and later told police different accounts (including that she fell asleep or blacked out).
- Toxicology: blood drawn ~1:35 p.m. showed no alcohol; urine at ~5:38 p.m. was positive for multiple substances (amphetamine, benzodiazepine, cocaine, opiates, THC). Experts agreed urine alone cannot establish impairment at the time of the crash; prosecution’s expert described additive sedating effects of multiple drugs.
- Defense expert testified a seizure (Ho had a prior possible seizure) could explain loss of consciousness and that there was no direct evidence connecting drug use to impairment at the crash time.
- Jury convicted on both counts; Ho appealed raising evidentiary, instructional, prosecutorial-misconduct, and ineffective-assistance claims. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of evidence of Ho’s recent drug/alcohol use and prescription meds | Evidence is relevant to show gross negligence (not only DUI) and probative of state of mind and risk created | Irrelevant/speculative because urine cannot show impairment at collision time; unduly prejudicial under Evid. Code § 352 | Admitted; probative of gross negligence and not unduly prejudicial; trial court did not abuse discretion. |
| Instructional errors re: CALCRIM No. 592, Vehicle Code elements, unanimity, CALCRIM No. 2200 speed language | N/A (People argued instructions were proper) | Claimed court omitted required element (predicate lawful act), failed to instruct on Vehicle Code violations and unanimity, and omitted optional speed language | No error: instruction properly focused on grossly negligent driving as predicate act; no unanimity or Vehicle Code-element instructions required; omitted speed language nonprejudicial/forfeited. |
| Ineffective assistance for failure to object to hearsay that others tried to dissuade Ho from driving | N/A (People relied on harmlessness) | Counsel deficient for not seeking limiting instruction on hearsay (statements by others) | Even assuming deficient, no reasonable probability of a different outcome given other admissible warnings and evidence; claim fails. |
| Admission/use of victim photographs and prosecutor’s references to severed leg | Photographs and references were probative of identity, causation (hair on windshield), and defendant’s state of mind; comments tied to evidence | Photographs and repeated references unduly inflammatory and appealed to passion/prejudice | Photographs admissible (not unduly gruesome); prosecutor’s references not misconduct; appellant forfeited misconduct claim by failing to object. |
Key Cases Cited
- People v. Horning, 34 Cal.4th 871 (evidence relevance and trial-court discretion review) (discussing standard of review for relevance and §352 balancing)
- People v. Ochoa, 6 Cal.4th 1199 (gross negligence may be shown from all relevant circumstances, including intoxication)
- People v. Karis, 46 Cal.3d 612 (Evid. Code §352 prejudice definition and distinction between prejudicial and merely damaging evidence)
- People v. Nicolas, 8 Cal.App.5th 1165 (instructional discussion of mental states in vehicular manslaughter context)
- People v. Minor, 28 Cal.App.4th 431 (need to instruct on elements of alleged Vehicle Code predicate when prosecution relies on a specific unlawful act)
- People v. Martinez, 31 Cal.4th 673 (victim photographs admissible if not unduly gruesome and relevant)
- People v. Thornton, 41 Cal.4th 391 (forfeiture rule for prosecutorial-misconduct claims when no timely objection)
- People v. Duff, 58 Cal.4th 527 (standard for prosecutorial misconduct and prejudice)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)