1 Filed 7/25/13 P. v. Callion CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. CHARLES GREGORY CALLION, Defendant and Appellant. E055485 (Super.Ct.No . FSB051311) OPINION

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. David M. Morse, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Charles Gregory Callion killed two teenagers in a car accident while driving drunk and is serving a life term after a jury convicted him of the resulting2 charges. Defendant challenges the trial c ourt’s decision to adm it into evidence the details, rather than the mere fact, of his mo st recent drunk driving conviction from 2001. As discussed below, the trial court did no t abuse its discretion when it admitted the evidence, and so we affirm the conviction. F ACTS AND P ROCEDURE Around 4:15 a.m. on July 24, 2005, defendant was driving his Chevy Suburban the wrong way on the southbound Interstate-215 in San Bernar dino. He collided head-on with a two-door Saturn driven by a 17-year-o ld boy, with a 16-yea r-old boy in the front passenger seat, and that boy’s 17- year-old brother in the rear seat. The Saturn’s driver swerved to avoid defendant, but defendant swer ved in the same direction. The Saturn’s driver died at the scene. His front seat passe nger died at the hospita l later that morning. The rear seat passenger suffered major injuries but survived. Defendant was found unbuckled in the pa ssenger seat of the Suburban, along with a nearly empty bottle of vodka. Defendant’s ey es were red and watery , and he smelled of alcohol. Defendant’s respons e to questions was not unde rstandable because his words were mumbled and slurred. Defendant was fo und to have a blood alcohol level of 0.16 percent. Defendant had prior drunk driving convic tions from arrests in 1990, 1991, 1992, 1998, and 2000. When the a ccident occurred in 2005, he was on probation for the last conviction and his driver’s lic ense was still suspended.3 On December 2, 2010, 1 the People filed a second amended information charging defendant with two counts of murder (Pen. Code, § 187, su bd. (a)), two counts of gross vehicular manslaughter while intoxicated (Pen . Code, § 191.5, subd. (a)), causing bodily injury while driving under the influence (Veh. Code, § 2 3153, subd. (a)), and causing bodily injury while driving w ith a blood alcohol level of 0.08 percent (Veh. Code, 23153, subd. (b)). As to the two bo dily injury counts, the Peopl e further alleged defendant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and proximately caused great bodily injury or death to mo re than one person (V eh. Code, § 23558). On October 27, 2011, a jury found defendant guilty of all charges and found each of the enhancement allegations true. The jury set the degree of murder at second degree. On January 20, 2012, the trial court sent enced defendant to a determinate term of eight years to be followed by an indeterminate term of 30 years to life, as follows: two consecutive terms of 15 years to life for the murder counts, plus three years consecutive for the causing great bodily injury while under the influence, plus three years consecutive for the great bodily injury enhancement to that count, plus two years consecutive for the multiple victim enhancement to that counts. The court stayed the sentences for all other counts and enhancements, including two term s of 15 years to life for gross vehicular manslaughter, pursuant to Penal Code sec tion 654. This appeal followed.

1 The People filed the felony complaint on August 4, 2005. Defendant was held to answer after the preliminary hearing on March 13, 2006. The People filed the first information on March 15, 2006 and the first amended information on October 1, 2007. The trial was continued numerous times, mostly on defense motion and sometimes by stipulation.4 D ISCUSSION Defendant challenges the trial court’s de cision to allow the Pe ople to introduce into evidence the details of his 2001 drunk-drivi ng conviction, rather than just the fact of the conviction. Although the court ruled th e details were admissible because they are relevant to prove the implied malice nece ssary for second-degree murder, defendant contends the evidence was neither relevant to nor probative of his state of mind, was cumulative of other evidence, and was unduly prejudicial. As discussed below, we conclude the trial court di d not abuse its discretion. The details of the 2001 conviction were presented to the jury through the testimony of the highway patrol officer w ho arrested and cited defendant for drunk driving on March 21, 2001. Offi cer Turk testified that, a littl e after midnight on that date, he was on patrol and noticed a car parked alon g the side of a four-lane, divided road near Cabazon. The car had “significant damage to its hood, roof and front windshield.” Defendant was the only person present and he was attempting to change a flat tire. Defendant told Officer Turk th at he had gotten lost after l eaving an Indian casino and fell asleep while driving. He went through a gap in the road’s center di vider, crossed into the opposing lanes of traffic, and hit a big rig tr ailer parked on the si de of the road. The trailer was 30 feet long and had four to five fe et of clearance. Defendant told the officer that he kept his left hand on the wheel but leaned to the right to protect his head and body. After the collision, defe ndant attempted to drive away , but had to stop about 200 feet later because he had a flat tire. Defendant did receive so me cuts on the top of his left hand.5 Officer Turk noticed that, while defe ndant was providing this information, defendant seemed to have trouble keeping hi s train of thought, slurred his words and spoke slowly. Defendant’s breath smelled of alcohol, his eyes were red and watery, and, when asked to move a few feet away from the car, “his gait was a little unstable.” Suspecting that defendant might be drunk, the officer performed some field sobriety tests and subsequently arrested defend ant and issued him a citation. Generally, evidence of a person’s character or a trait of his or her character, including evidence of prior conduct by him or her, is “inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, su bd. (a).) This rule does not prohibit “the admission of evidence that a person committ ed a crime, civil wrong, or other act when relevant to prove so me fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act.” ( Id. at subd. (b); see People v. Ewoldt (1994) 7 Cal.4th 380, 393 ( Ewoldt ), superseded by statute on another point as stated in People v Robertson (2012) 208 Cal.App.4th 965 , 991.) “The admissibility of such ev idence turns largely on the question whethe r the uncharged acts are suffici ently similar to the charged offenses to support a reasonable inference of th e material fact they are offered to prove.” ( People v. Erving (1998) 63 Cal.App. 4th 652, 659-660.) Even if the evidence is re levant for purposes of Ev idence Code section 1101, subdivision (b), it may not be admitted if doi ng so would “‘contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’ [Citation.]” ( Ewoldt, supra , 7 Cal.4th at p. 404.) The evidence “must have substantial6 probative value that is not greatly outweighed by the poten tial that undue prejudice will result from admitting th e evidence.” ( People v. Lenart (2004) 32 Cal.4t h 1107, 1123.) “Prejudice,” in this sense, re fers to evidence which tends to evoke an emotional bias against the defendant. ( People v. Rucker (2005) 126 Cal.App. 4th 1107, 1119.) We review the trial court’s decision on these issues for an abuse of discretion. ( People v. Kipp (1998) 18 Cal. 4th 349, 369.) Here, the details of the 2001 accident were offered by the prosecution as evidence that defendant was subjectively aware of the risk to human life associated with drunk driving. The use of such ev idence for this purpose is base d upon the theory of vehicular homicide approved in People v. Watson (1981) 30 Cal.3d 290 ( Watson ), superseded by statute on another point as stated in People v. Bradford (1994) 22 Cal.App.4th 433, 439. In Watson , our state Supreme Court held that a person whose reck less driving kills another can be charged with second degree mu rder if there is su fficient evidence of implied malice. Implied malic e, the court explained, ca n be shown “when a person, knowing that his conduct enda ngers the life of another, none theless acts deliberately with conscious disregard for life.” ( Id . at p. 296.) The court distinguished implied malice from gross negligence—the level of culpab ility required for vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) “A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position wo uld have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depend s upon a determination that the defendant7 actually appreciated the risk involved, i.e., a subjective standard. ( Watson, supra , 30 Cal. 3d. at pp. 296-297.) Since Watson , numerous courts have upheld the use of evidence of prior driving conduct to show implied malice in vehicular second degree murder cases. (See, e.g., People v. Ortiz (2003) 109 Cal.App.4th 104, 116 ( Ortiz ); People v. Brogna (1988) 202 Cal.App.3d 700, 706-710; People v. McCarnes (1986) 179 Cal.A pp.3d 525, 532-533; People v. Eagles (1982) 133 Cal.App.3d 330, 340.) As stated by the Ortiz court: “[C]ourts have recognized repeatedly that a motor vehicle driver’s previous encounters with the consequences of recklessness on th e highway—whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motiv ator—sensitizes him to the dangerousness of such life- threatening conduct.” ( Ortiz, supra , 109 Cal.App.4th at p. 112.) Here, contrary to the arguments set fort h in defendant’s brief, the evidence is relevant, probative, not cumulative, and not un duly prejudicial. As the cases cited above make clear, the evidence is relevant to show that defendant actually appreciated the risk of driving drunk and therefore acted with implied malice. The evidence is probative because defendant himself was injured in the 2 001 accident, in which he was also driving on the wrong side of the road. Thus, the evid ence tends to show that defendant was well aware that getting behind the wheel of a vehicl e while drunk is dangerous to human life. The evidence is not merely cu mulative because, although the ju ry was also told of the fact of several other drunk-driving convictions , it was important for th e jury to know, not just that defendant had driven while dr unk on numerous occasions , but that he had8 actually crashed his car and been injured, howev er slightly. This a dded to the evidence of his subjective awareness of the danger of getting behind the wheel while drunk. As the court in Ortiz points out, it is the “‘crashing of cars and the killing of people’” that increases a defendant’s subj ective awareness of the perils of driving badly. ( Ortiz, supra, 109 Cal.App.4th at p. 116.) While defendant had not previously ki lled a person while driving drunk, this evidence th at he had actually crashed his car and been injured in doing so was not cumulative to th e mere fact of previous drunk driving convictions. The test for whether evidence is unduly prejud icial is whether “it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point up on which it is relevant, but to reward or punish one side because of the jurors’ emotiona l reaction. In such a circum stance, the evidence is unduly prejudicial because of the substantial like lihood the jury will use it for an illegitimate purpose.” ( Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1 008-1009.) Here, although the evidence is probative in that it shows defendant had prev iously crashed his car and injured a person, himself, after driving drunk on the wrong side of the road, it is not likely to “inflame the emotions of th e jury.” This is because, co mpared to the current accident in which he killed two innocent teenagers, the evid ence to which he objects is relatively mild. Any inflaming of emotions would ha ve come from the evidence of the current crash rather than the 2001 crash. To conclude, the trial court did not abuse its discretion when it allowed the jury to hear the details of the 2001 crash. The evid ence is highly relevant to and probative of9 defendant’s subjective awareness of the dang er to human life when he chose to drive drunk, it was not cumulative, and it was not unduly prejudicial. D ISPOSITION The conviction is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur: HOLLENHORST J. MILLER J.