Defendant Marco Escarcega caused a head-on collision while attempting to pass two vehicles on a two-lane road at night, resulting in catastrophic injuries to two victims. Defendant argues that there is insufficient evidence he acted with wanton disregard for safety; that he was denied his right to present a defense when the court excluded cross-examination questions about other accidents on that stretch of road; that the great-bodily-injury enhancement is unauthorized because great bodily injury is an element of the underlying offense; that the evidence did not support the court's imposition of the high term; and that the court erred by finding defendant presumptively ineligible for probation. We affirm.
PROCEDURAL BACKGROUND
By information dated November 1, 2016, defendant was charged with one count of reckless driving ( Veh. Code, § 23103, subd. (a) ; count 1).
After a trial at which he testified in his own defense, the jury convicted defendant of count 1 and found the allegations true. The jury deliberated for just over an hour.
Defendant was sentenced to an aggregate term of six years in state prison-the high term of three years for count 1 (§ 23103/23105) plus three years for the enhancement ( Pen. Code, § 12022.7, subd. (a) ), to run consecutively. He filed a timely notice of appeal.
FACTUAL BACKGROUND
1. Prosecution Evidence
1.1. Defendant tries to pass two vehicles and crashes into an oncoming car.
On July 15, 2015, at 9:20 p.m., defendant was driving a 2012 Hyundai Elantra eastbound on Palmdale Blvd. He was on his way to work at
As defendant approached 110th Street, he saw two vehicles ahead of him. Shannon Emery's Chevrolet Monte Carlo sedan was directly in front of him. A large delivery box-truck was in front of Emery. Neither Emery nor defendant could see whether there were any cars in front of the delivery truck, which also blocked their view of any headlights from oncoming traffic. Defendant estimated he was driving 45 miles per hour at this point, but Emery testified that she was going 70 miles per hour.
Though defendant could not see beyond the truck, did not know whether there were more cars in front of it, and could not tell how much space there was between Emery and the truck, he decided to pull into the westbound lane and pass both vehicles. When defendant pulled past Emery and attempted to pass the truck, however, he discovered it was following two or three more cars.
As defendant drew parallel with the delivery truck, he saw headlights coming towards
Emery, who by this time had seen Jessica's headlights, eased off her gas pedal to allow defendant to pull in front of her. According to his statement to authorities, defendant tried to reenter the eastbound lane in front of Emery, but there wasn't enough room, so he slowed down to retake his original spot. By that point, however, another car had pulled behind Emery, and he couldn't get back in. Defendant swerved onto the left shoulder. Meanwhile, Jessica had seen defendant driving towards her, had made the same decision he did, and swerved toward the same shoulder. The cars collided, and Jessica blacked out briefly at the moment of impact. Emery saw the collision and called 911.
According to California Highway Patrol Officer Nathan Parsons, who testified as an expert on collision reconstruction, defendant had continued to accelerate until two and a half seconds before the collision. Five seconds before the collision, defendant was driving 67 miles per hour. Four seconds before the collision, he was driving 71 miles per hour. Three seconds before the collision, he was driving 73 miles per hour. And though defendant first stepped on his brakes two and a half seconds before the collision, he did not hit them hard enough to engage the Antilock Braking System until one second before impact. At the moment of impact, defendant was driving 42 miles per hour. Jessica was driving approximately 37 miles per hour.
Defendant was adamant that he had reached the shoulder first and that Jessica was at fault for the crash-but CHP Officer Eduardo Alonzo, who investigated the incident, determined that unsafe passing had caused the collision. Defendant's admission that he could not see the cars in front of the delivery truck-and therefore, did not have a clear view of the opposing lane-strengthened that conclusion.
Nor were either Parsons or Alonzo persuaded by defendant's theory that dips in the road had prevented him from seeing Jessica's headlights. Alonzo, who had driven on the road numerous times, did not consider the depression on the westbound side of Palmdale Blvd. to be significant; it had never caused him to lose sight of oncoming traffic. According to Parsons, who measured the road with a team of engineers, the depression is 2.17 feet deep at its lowest point, which was 270 feet away from the impact site. But Jessica's headlights were higher than that-2.2 feet above ground at the center of the lights and 2.4 feet above ground at the top of the lights.
1.2. Jessica and Carlos suffer serious injuries.
Carlos went into hyperemic shock, had a collapsed lung, and was put on life support with a chest tube. He was in a coma for 10 days. He received multiple unsuccessful skin grafts from his legs to his arm, which required his mother to tend to an open wound from his wrist to his elbow. Carlos
Jessica remained in the hospital for three weeks. She had hip, knee, and ankle surgery to repair serious fractures; her ankle had to be "completely reassembled." Jessica suffered additional fractures to her skull, four ribs, sternum, and lower spinal disk, as well as internal bleeding. She was confined to a wheelchair for six months, used a walker for three months, and had to
2. Defense Evidence
2.1. Defendant's Testimony
Defendant testified on his own behalf. On the evening of July 15, 2015, he was driving to work as a detention officer at the Adelanto Detention Facility. He was supposed to arrive by 10:00 p.m. He was not running late, and there was no traffic. In his experience, that stretch of Palmdale Blvd. was "very straight" and had "little ups and downs" but no "major depressions." He did not know where the depressions were. The road was very dark at night.
As he approached 110th Street, he saw two vehicles in front of him-a pickup truck stacked with items, and a smaller vehicle behind that truck. Defendant was concerned about driving behind the truck because he thought its cargo looked unstable and some of the items might fall out. He planned to pass the smaller vehicle, and then to pass the truck.
Defendant could not tell whether there were any vehicles in front of the truck and the smaller car because "the truck obscured any other taillights in front of it." When he did not see any lights coming in the opposite direction, he confirmed there was a broken line on the road and moved into the left (westbound) lane to initiate a pass. By the time he caught up to the car and was approaching the truck, however, he discovered that there were three more cars in front of the truck. Then he saw oncoming headlights appear "out of nowhere."
Defendant tried to pull back into the right (eastbound) lane between the truck and smaller car, but there wasn't enough room. He slowed down and tried to move back into his original position, but by then, another car had pulled closer to the smaller car and "it was too dangerous" to move over. Defendant decided to move onto the left shoulder to allow the oncoming traffic to pass. But while he was on the shoulder, the car coming toward him swerved off the road and collided into him.
After the collision, defendant got out of his car using the passenger door. He saw Jessica crying and thought she might have been saying something, but he couldn't hear her through the window. He couldn't help her because he couldn't walk. He tried to tell a bystander to help her, but he couldn't speak.
Brad Avrit, president of Wexco International Corporation, conducted an accident investigation. He recreated the location of each vehicle based on its speed and the location of the impact to show why the drivers did not see each other earlier. Avrit concluded that the drivers' headlights
Avrit prepared a video for the jury that purported to demonstrate the problem by reenacting defendant's view of the oncoming headlights. Footage was taken by a camera placed on a stationary tripod at defendant's approximate eye level in the Hyundai. The video demonstrated that defendant had no view of oncoming headlights for approximately eight to 13 seconds where the road dipped to the lower elevation. The same phenomenon occurred for drivers traveling in the opposite direction.
Avrit opined that it was legal to pass on that stretch of Palmdale Blvd. because there were no "do not pass" signs, and there was a dotted line on the road. But where there is a "site obstruction" without any warning signs or solid yellow lines, he opined, it is "considered a trap."
On cross-examination, Avrit conceded that the Google Earth images on which he relied included a disclaimer that "Google makes no claims to the accuracy of coordinates in Google Earth." He also admitted that he did not take survey measurements of the road's elevation. Nevertheless, he testified that the Google Earth data was accurate "to a reasonable degree of engineering certainty" based on what he observed with his "own two eyes."
3. Rebuttal Evidence
Parsons, the CHP expert, testified again on rebuttal. He explained that he did not rely on data from Google Earth because its reliability was unknown. He was concerned about the accuracy of Avrit's measurements because Google Earth elevations are rounded to the nearest foot. And indeed, Parsons's physical measurements of the road revealed a 200-foot error in Avrit's calculations. The depression was 673 feet long, not 860 feet, and it was 270 feet away from the area of impact.
Parsons also had concerns about the defense video. He noted that though Avrit set the camera on a 24-inch tripod to account for defendant's eye height, Avrit hadn't accounted for the height of the car. Thus, the camera was set too low and the video showed less of the road than defendant would
CONTENTIONS
Defendant contends: (1) there is insufficient evidence he acted with wanton or reckless disregard for safety; (2) he was denied the right to present a defense when the court would not allow him to cross-examine a CHP officer about the details of other accidents on Palmdale Blvd.; (3) the great-bodily-injury enhancement is unauthorized because great bodily injury is an element of the underlying offense; (4) the evidence does not support the court's decision to impose the high term; and (5) the court erred by finding him presumptively ineligible for probation.
DISCUSSION
1. Substantial evidence supports defendant's conviction.
A criminal defendant may not be convicted of any crime or enhancement unless the prosecution proves every fact necessary for conviction beyond a reasonable doubt. ( U.S. Const., 5th & 14th Amends.; see Cal. Const., art. I, §§ 7, 15 ; In re Winship (1970)
Defendant contends there is insufficient evidence to support the wanton disregard element of reckless driving because he was on a stretch of road that allowed passing, and since he could not see around the truck he sought to pass, and the depressions in the road blocked his view of oncoming headlights, he did not realize he couldn't pass safely until he had already pulled into oncoming traffic. "This," he insists, "could have happened to anyone in his situation." We disagree.
1.1. Standard of Review
In assessing the sufficiency of the evidence, we review the entire record to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (
In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. ( People v. Kraft (2000)
1.2. Elements of Reckless Driving
To convict a defendant of reckless driving, the People must prove beyond a reasonable doubt that:
• the defendant drove a vehicle on a highway;2 and
• the defendant intentionally drove with wanton disregard for the safety of persons or property.
( § 23103 ; see CALCRIM No. 2200.) "A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, and (2) he or she intentionally ignores that risk." ( CALCRIM No. 2200.)
1.3. There is substantial evidence defendant acted with wanton disregard for safety.
Defendant emphasizes that passing was legally permitted on that stretch of Palmdale Blvd. and insists it was proper for him to move into the left lane without being able to see beyond the delivery truck. He is mistaken.
Taken together, these statutes make clear that a broken line on a roadway does not make passing legal: passing is only legal if it is safe . And passing is not safe unless a driver, before attempting to pass another car, can see that the left lane is free from traffic and that there is enough room in the right lane to overtake the slower vehicle without cutting it off.
That's why the California Driver Handbook published by the Department of Motor Vehicles warns drivers to "[a]void passing other vehicles ... on two-lane roads; it is dangerous. Every time you pass, you increase your chances of having a collision." (Dept. Motor Vehicles, Cal. Driver Handbook (Aug. 2018) p. 66 < https://www.dmv.ca.gov/web/eng_pdf/dl600.pdf> [as of Feb. 14, 2019]; see, e.g., People v. Letner and Tobin (2010)
Furthermore, Emery testified that she made room for defendant to return to the right lane but he did not try to slow down. According to Parsons, defendant continued to accelerate until two and a half seconds before the collision. The jury could have reasonably inferred from this testimony that when defendant saw Jessica's headlights, he still had enough time and space to return to his lane ahead of Emery but nonetheless still tried to pass the truck. Taken together, a reasonable jury could conclude from these facts that defendant's conduct went beyond mere carelessness.
Accordingly, we conclude there is sufficient evidence defendant acted with reckless disregard for safety.
2. The court's evidentiary ruling did not deny defendant the right to present a defense.
3. A great-bodily-injury enhancement may attach to felony reckless driving.
Penal Code section 12022.7 (hereafter Section 12022.7 ) provides for a three-year sentence enhancement when a defendant personally inflicts great bodily injury on a non-accomplice in the commission of a felony. ( Pen. Code, § 12022.7, subd. (a).) But the statute specifically exempts murder, manslaughter, arson, and any crime in which "infliction of great bodily injury is an element of the offense." (Id. , subd. (g).) Defendant argues subdivision (g) bars the enhancement imposed here because great bodily injury is an element of the "offense" of reckless driving causing an enumerated injury (§ 23105) even though that "offense" named Carlos as the victim and the enhancement named Jessica.
As a matter of first impression, we conclude section 23105 is not a substantive offense because it does not define a criminal act. Instead, it is a
3.1. Relevant Statutes
As discussed, to convict a defendant of reckless driving under section 23103, the prosecution must prove:
• the defendant drove a vehicle on a highway; and
• the defendant intentionally drove with wanton disregard for the safety of persons or property.
Under the statute, "except as provided in Section 23104 or 23105," a defendant "convicted of the offense of reckless driving" may be sentenced to between five and 90 days in county jail, a fine of between $145 and $1,000, or both. ( § 23103, subd. (c).) That is, "except as provided in Section 23104 or 23105," reckless driving is a misdemeanor.
Section 23104 lengthens a defendant's sentence "whenever reckless driving of a vehicle proximately causes bodily injury to a person other than the driver ...." If the defendant is a first-time offender, he is subject to a misdemeanor term of between 30 days and six months in county
Finally, under section 23105, a "person convicted of reckless driving in violation of section 23103 that proximately causes one or more" enumerated serious injuries is subject to the same punishment as a recidivist offender. That is, the offense becomes a wobbler.
Here, defendant was charged with one count of reckless driving ( § 23103, subd. (a) ). As to that count, the information alleged he had proximately
3.2. Standard of Review
Section 12022.7, subdivision (g) 's application to the reckless driving statutes is an issue of "statutory interpretation that we must consider de novo." ( People v. Prunty (2015)
Though we focus on the text itself, we "must also consider 'the object to be achieved and the evil to be prevented by the legislation. [Citations.]' [Citation.]" ( Horwich v. Superior Court (1999)
3.3. Great bodily injury is not an element of reckless driving.
By its terms, Section 12022.7, subdivision (g), applies only to murder, manslaughter, arson, or when "infliction of
3.3.1. Substantive Crimes and Punishment Statutes
"Provisions describing substantive crimes ... generally define criminal acts ." ( People v. Ahmed (2011)
Likewise, though sentence enhancements and penalty provisions serve similar functions, the "difference between the two is subtle but significant." ( People v. Jones (2009)
A statute is more likely to be a sentencing provision than a substantive offense when it identifies circumstances that elevate the punishment for a crime defined in a different statute.
For example, in Robert L ., the Supreme Court held that Penal Code section 186.22, subdivision (d), is an alternate penalty provision because it "provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang." ( Robert L. v. Superior Court (2003)
Likewise, in Bouzas , the Supreme Court held that Penal Code section 666, petty theft with prior, was a sentencing provision, not a substantive offense, because it was structured to increase "the punishment for a violation of other defined crimes and not to define an offense in the first instance. [ Penal Code section 666 ] simply refers to other substantive offenses defined elsewhere" and states that a defendant previously convicted of one of those offenses is subject to greater punishment than a first-time thief. ( People v. Bouzas (1991)
Section 23105 operates the same way. It states: "A person convicted of reckless driving in violation of Section 23103 that proximately causes one or more of the injuries specified in subdivision (b) to a person other than the driver, shall be punished by imprisonment" as either a felon or a misdemeanant. (§ 23105, subd. (a).) Thus, like the statutes at issue in Robert L. and Bouzas , section 23105 first references a substantive offense defined elsewhere-"reckless driving in violation of Section 23103"-then identifies conditions under which that act may be punished as a felony: when a "person ... proximately causes one or more of the injuries specified in subdivision (b) ...." (See People v. Weathington (1991)
The structure of the reckless driving statute itself supports this view. In section 23103, subdivision (a) defines a criminal act: "A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving." Then, subdivision (c) establishes the
If statutory " 'language is unambiguous, there is no need for further construction.' " ( People v. Gonzales (2017)
We are mindful, however, that in arguing Section 12022.7, subdivision (g), applies here, defendant relies heavily on Beltran , in which the court of appeal reversed a Section 12022.7 enhancement after concluding "great bodily injury is an element of the felony offense of evading a pursuing peace officer." ( People v. Beltran (2000)
To resolve any ambiguity, we turn to legislative history. (See People v. Bright , supra , 12 Cal.4th at pp. 662-669,
3.3.3. Legislative Purpose
Here, section 23105's history is consistent with its plain meaning: the Legislature enacted a penalty provision. (See People v. Garcia (1998)
In the wake of the 2001 summer blockbuster The Fast and the Furious (Universal Pictures 2001), a series of deaths galvanized law enforcement to crack down on local street-racing enthusiasts and served as a catalyst for new legislation designed to deter the activity. (Clar, Chapter 411: Putting the Brakes on the Dangerous Street Racing Phenomenon in California (2003)
During the 2003-2004 session, lawmakers expanded the collateral consequences of street racing again-this time by requiring the DMV to revoke offenders' licenses (Stats. 2004, ch. 595, § 2)-but efforts to increase the penal consequences for the crime stalled. Assembly Bill No. 985 would have made street racing (§ 23109) a wobbler whenever it caused great bodily injury-even for a first-time offender.
So, in the 2005-2006 legislative session, advocates adopted a two-step approach. First, the Legislature amended the street-racing law (§ 23109) to increase the penalties for street-racing recidivists , making the penalties equivalent to those already available for reckless driving under section 23104. (Assem. Bill No. 1325 (2005-2006 Reg. Sess.) § 1; Stats. 2005, ch. 475, § 1.) "Part of the rationale for creating the enhanced penalties on a second offense was that the concern was not with the person who gets caught reckless driving or in a speed contest on a first time bad decision situation but [rather] those who participate regularly in speed contests and other similar events. The provisions ... were intended to go after those repeat offenders who continue to offend even when caught." (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2190 (2005-2006 Reg. Sess.) as amended Apr. 20, 2006, p. 7; accord, Gov. Off. of Planning and Research, Enrolled Bill Rep. on Assem. Bill No. 1325 (2005-2006 Reg. Sess.) Sept. 19, 2005, p. 1 ["This bill would help reduce street racing by targeting repeat offenders who cannot plead ignorance about the consequences of their actions. These offenders know about the numerous crashes, injuries and fatalities yet they still choose to put themselves and others at risk with their unlawful behavior. AB 1325 will help deter repeat offenders by increasing the penalties for a second offense and will send the message to all street racers that California is serious about punishing participants in these deadly games."].)
Next, once the new recidivist penalties went into effect, the broader measure was reintroduced-but this time it amended both the reckless driving law and the street-racing statute. (Assem. Bill No. 2190 (2005-2006 Reg. Sess.) as introduced Feb. 22, 2006 [hereafter A.B. 2190].) As introduced, A.B. 2190 deleted the prior-conviction requirements of sections 23104 (reckless driving wobbler) and 23109 (street racing) and provided instead that any defendant-including a first-time offender-who proximately caused any injury could be subject to a felony.
Though an Assembly amendment limited the expanded punishment to offenders who caused great bodily injury (Assem. Amend. to A.B. 2190 (2005-2006 Reg. Sess.) Apr. 20, 2006), the Senate Public Safety Committee was still not convinced that first-time reckless drivers and street racers should be eligible for felony punishment-particularly since no one knew whether the last round of statutory changes had made any impact. (Sen. Com. on Public Safety, Analysis of A.B. 2190, supra , pp. 8-10.)
To address these concerns, the Senate made several changes to the bill. First, it amended the bill to express the Legislature's intent that "only the
Rather than changing the existing statutes, the final version created two new provisions-section 23105 for reckless driving and section 29109.1 for street racing-and listed precise injuries a first-time offender needed to cause to warrant felony punishment. Not all great bodily injury would qualify. Instead, the defendant must proximately cause: loss of consciousness, concussion, a bone fracture, a protracted loss or impairment of function of a bodily member or organ, a wound requiring extensive suturing, a serious disfigurement, brain injury, or paralysis. (§ 23105, subd. (b).)
These negotiations reveal that the Legislature was focused on increasing punishment for existing crimes and the circumstances under which such punishment would be appropriate. There is no indication that lawmakers suspected they would be creating an entirely new criminal offense.
3.3.4. Absurd Consequences
Nor does treating section 23105 as a sentencing provision lead to absurd consequences that the Legislature could not possibly have intended.
If section 23105 is a sentencing provision, a defendant who drives recklessly may be charged with only one count of reckless driving-regardless of how many people he injures-because he has committed only one criminal act. Yet he is also subject to a great-bodily-injury enhancement for each otherwise unaccounted-for victim. ( People v. Oates (2004)
The Legislature plainly did not contemplate such a result. As enacted, section 23105 was conduct-focused-not victim-specific. The purpose of the bill was to "increase traffic safety by reducing the
As discussed above, the list of injuries was added to the bill to narrow its scope to address the Senate's concerns about whether a first offense for reckless driving should ever be treated as a wobbler. As such, the injuries represented an objective measure of seriousness-a Legislative determination of the circumstances under which reckless driving is egregious enough to warrant a felony sentence for a first-time offender. Treating the provision as a substantive offense would undermine that intent by subjecting a first-time offender to multiple felonies rather than just one.
We recognize that our interpretation of section 23105 could lead to sentencing disparities wherein defendants convicted of multiple counts of vehicular manslaughter receive shorter aggregate terms than defendants convicted of a single count of reckless driving with multiple great-bodily-injury enhancements. (See Cook , supra , 60 Cal.4th at pp. 936-938,
Because section 23105 is not a substantive offense and great bodily injury is not an element of section 23103, we conclude Section 12022.7, subdivision (g), does not apply. Accordingly, defendant's sentence is authorized.
4.-5.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
EGERTON, J.
DHANIDINA, J.
Notes
Unless otherwise indicated, all undesignated statutory references are to the Vehicle Code.
A highway is any place "publicly maintained and open to the use of the public for purposes of vehicular travel," including a street. (§ 360.)
See footnote *, ante .
Defendant does not argue that the enhancement should have been stricken or stayed under some other statutory provision, and we express no opinion on that subject.
Wobblers are a "special class of crimes" that "are chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor; that is, they are punishable either by a term in state prison or by imprisonment in county jail and/or by a fine." (People v. Park (2013)
We use street racing and engaging in a speed contest synonymously.
As section 23105 had not yet been enacted, the maximum penalty for reckless driving then appeared in section 23104. As discussed, section 23104 increases penalties for reckless drivers who injure others. If the defendant is a first-time offender, he is subject to a longer misdemeanor sentence. (§ 23104, subd. (a).) If the defendant causes great bodily injury and has previously been convicted of reckless driving, engaging in a speed contest (§ 23109), or driving under the influence (§ 23152), however, the offense becomes a wobbler. (§ 23104, subd. (b).)
In examining vehicular manslaughter in Cook , the Supreme Court held that section 12022.7, subdivision (g), did not apply to manslaughter even if the enhancement involved injuries to a different victim than the victim of the substantive offense. (Cook , supra ,
See footnote *, ante .