The People v. Kevin Lee Mayberry

2011 | Cited 0 times | California Court of Appeal | March 23, 2011

P. v. Mayberry



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kevin Lee Mayberry was convicted of murder, gross vehicular manslaughter by an intoxicated person with prior driving under the influence (DUI) convictions, and related charges. He contends the trial court erred when it denied his Batson-Wheeler motion and that the evidence was insufficient to prove implied malice or gross negligence necessary for murder and manslaughter. Mayberry's contentions lack merit, and we affirm the judgment.


The charges in this case relate to a freeway accident that killed Mark Gelardi and injured his sister, Nancy Hill. Defendant was driving the car that hit Hill and Gelardi. At the time of the accident he had three prior DUI convictions, had enrolled in at least three programs for drunk drivers, and was in an 18-month program. His license had been revoked.

Earlier on the evening of the accident defendant drove from his home in Suisun City to Oakland with his friend, Lynn Radney. He had already had a few drinks, and Radney thought he was tipsy. In Oakland they met up with a friend, drank some rum, and went to a sports bar. Later that night defendant and Radney left Oakland to return to Suisun City. Leah Dineen and Eric Ortiz were driving behind defendant on Interstate 80 and noticed his car weaving across all three lanes as it alternately sped up and slowed down. Dineen called 911 to report defendant as a dangerously drunk driver. While she was on the phone, defendant took a curve too sharply, crashed into a sign on the right shoulder and traversed the freeway into the far left lane, where it struck Hill's Toyota 4Runner. The 4Runner rolled at least twice and Gelardi was ejected through the sunroof. There was no evidence that defendant ever applied his brakes before or during the collision.

A Richmond police officer arrived at the scene of the crash within minutes. Ortiz, who had pulled over, could see Gelardi's body on the shoulder of the highway. Defendant was revving his engine as if he were trying to back up and leave the scene. When Ortiz yelled at him to stop, defendant "just casually sat back in his seat" and lit a cigarette.

Defendant refused to blow into a preliminary alcohol screening device at the scene. Once he was at the county hospital, he refused to allow his blood to be drawn and struggled until police restrained him in order to take a blood sample. His blood alcohol level was 0.31 percent--almost four times the legal limit.

Defendant was charged with multiple crimes including murder, gross vehicular manslaughter by an intoxicated person with two prior convictions, and causing injury as a result of driving under the influence of alcohol. A jury convicted him on all counts. The court found true allegations that defendant had three prior DUI convictions and sentenced him to a term of 15 years to life. Defendant filed a timely appeal.


I. The Court Properly Denied Defendant's Wheeler Motion

During voir dire the prosecutor exercised a peremptory challenge to excuse prospective juror B.D., one of two African-American jurors in the venire. Defendant moved for dismissal of the venire under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. The court invited the prosecutor to explain her reasons for excusing the prospective juror, accepted the prosecutor's explanation, and denied the defense motion. Defendant asserts this was error. We disagree.

A. The Law

The law is well settled. "If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. . . . [¶] . . . If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone. The showing need not rise to the level of a challenge for cause. But to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses--i.e., for reasons of specific bias as defined herein. He, too, may support his showing by reference to the totality of the circumstances: for example, it will be relevant if he can demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds." (People v. Wheeler, supra, 22 Cal.3d at pp. 280-282, fn. omitted.) The trial judge must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . ." (People v. Hall (1983) 35 Cal.3d 161, 167-168.)

We will uphold the trial court's ruling if it is supported by substantial evidence, unless the record indicates the court misunderstood the nature of its obligations or otherwise based its ruling on something other than a resolution of the pertinent factual issue. (People v. Jackson (1992) 10 Cal.App.4th 13, 23.) "If the trial court makes a 'sincere and reasoned effort' to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. In such circumstances, an appellate court will not reassess good faith by conducting its own comparative juror analysis. Such an approach would undermine the trial court's credibility determinations and would discount ' "the variety of [subjective] factors and considerations," ' including 'prospective jurors' body language or manner of answering questions,' which legitimately inform a trial lawyer's decision to exercise peremptory challenges." (People v. Montiel (1993) 5 Cal.4th 877, 909, brackets in original.)

B. Background

Each potential juror completed a questionnaire that sought information about his or her experiences with, and feelings about, drunk driving. For example, the questionnaire asked: "Is there anything about the nature of the charge of drunk driving that would make it difficult for you to be fair and impartial to a person accused of that crime?"; "If a person were killed in an accident with a drunk driver, would you consider the drunk driver responsible for the death regardless of any other circumstances?"; "Do you believe that every person who drives drunk is deliberately indifferent to the safety of others?"; and "Have you or any family members or close friends ever been the victim of an accident involving a drunk driver?" The questions were generally drafted so that "yes" answers indicated strong feelings against drunk driving, while "no" answers were more neutral.

Potential juror B.D. gave "no" answers to all of the questions on the questionnaire, described her occupation as child welfare program manager, and said she had an M.S.W. degree. Questioning during voir dire elicited that her job with a social services agency involves managing employees who supervise child abuse investigators. The primary mission of her program is preventing child abuse. B.D. does not work directly with children, but focuses rather on finding social solutions for child abuse issues. Her professional duties include handling high profile cases and staff issues, obtaining funding, program development, education, and child abuse prevention. Most of her colleagues and supervisees are licensed social workers or therapists. B.D. was not a licensed social worker at the time of the trial, but was about to take her licensing exam.

Defendant moved to dismiss the venire under Batson/Wheeler immediately after the prosecutor excused B.D. The trial court found a prima facie showing of Wheeler error and invited the prosecutor to explain her peremptory challenge. The prosecutor explained: "The composition of the [venire] doesn't have any bearing on whether or not the People had a good faith reason for excusing Ms. [B.D.] The reason that--the main reason is her job. She is basically a social worker. We've had two very polite well-rounded female social workers but the People, as a rule of thumb, indefinitely [sic] in my strategy in this case and in any case is not to have jurors seated who do social work in an occupation of forgiving and looking for social solutions to community issues. By nature of their occupation, they work with psychologists and as a profession that the People want to avoid altogether. I did exclude another social worker, Ms. [G.]. And by the same strategy, the People also usually and in this case excused school teachers because they work with children and they tend to be very forgiving and lenient if they're given any justification for behaviors. They can be obviously--and that's a stereotype that has to do with the job. That's all we've got in jury selection. I would have excused Ms. J[.] if the defense didn't beat me to it. He didn't seem very happy with her qualifications and it's how I predicted that he would excuse her.

"I also in chambers--and we just recently met for cause--I really liked juror no. 123, . . . who is next in order and I will be excusing Mr. [M.], the only juror before him as well to get [Juror No. 123] seated and seeing more promising prospect jurors is also an independent justifiable grounds for excusing less qualified jurors before him. I want to make sure. She said her questionnaire was all no's. I know that for what defense counsel is seeking to do in this case. He's used all 20 peremptory challenges to exclude any jurors who didn't answer the questionnaire all no. And the People would prefer a juror who had a little bit of emotion to this questionnaire which was a bit inflammatory where a lot of the jurors couldn't resist running comments about how drunk driving is, it's unconscionable, it kills people, I don't want my children killed by a drunk driver. And the People prefer given the opportunity--and I do have great opportunity here because I have so many peremptory challenges left--to have jurors who had some reaction to those informatory [sic] questions and he was an all no. And [Juror No. 123] by contrast had some remarks about drunk driving as did--well [Juror No. 109] was before her but those are my reasons."

The court considered each of these reasons to be valid. It noted the prosecutor had stated her intention to "get to [Juror No. 123] who is our last juror in our seat of nine pack of which Ms. [B.D.] would have been prior to that. It doesn't necessarily mean that she would have been excused to get to [Juror No. 123] but certainly we were aware of the strategy to get to [Juror No. 123]." The court found the prosecutor reasonably wanted to avoid having B.D. on the jury because of the nature of her work in "basically a social worker type of outfit." The court observed that the prosecutor also excused another prospective juror who held a management position in a social work organization. Lastly, the court accepted the prosecutor's explanations that she was trying to get jurors who had not given all "no" answers on the jury questionnaire. "Therefore, the Court finds that the explanation given by [the prosecutor] with respect to [Juror B.D.] are factually based and legally appropriate. The Court finds that the explanation given were the actual basis for the challenge and not for the purpose of racial discrimination and, therefore, the Court finds that [defendant] has not carried the burden of proof required to show that purposeful discrimination and the Wheeler Motion is denied."

C. Analysis

Defendant maintains the prosecutor's stated reasons were pretext for a race-based juror challenge, but our substantial evidence review supports the trial court's contrary conclusion. The prosecutor explained it was her practice to exclude potential jurors who worked in social work organizations because she believed they tend to be overly lenient and forgiving. The explanation is plausible and confirmed by the fact that the prosecutor struck another potential juror for the same reason. (See People v. Wheeler, supra, 22 Cal.3d at pp. 280-282 [striking non-minority jurors on same grounds as minority group juror supports credibility of proffered reason].) The fact that both prospective jurors were managers rather than social workers providing client services does not, in our view, undermine the validity of the prosecutor's preference to avoid jurors involved in the social work profession.

The prosecutor's additional explanation that she wished to avoid prospective jurors who, like B.D., answered "all no" on the jury questionnaire was also reasonable and credible. The questionnaire elicited the prospective jurors' feelings on drunk driving, and the prosecutor could reasonably choose to dismiss potential jurors whose responses suggested indifference to the offense. (See People v. Reynoso (2003) 31 Cal.4th 903, 925 [prosecutor may dismiss a prospective juror for almost any race-neutral reason, even "based on a hunch or suspicion"].) Moreover, the record confirms that the prosecutor repeatedly questioned "all no" jurors about their responses and referred to a number of them as "all no" persons when discussing their questionnaires with the court.

Although defendant says that, after she excused B.D., the prosecutor accepted some Caucasian jurors who had given all "no" answers, the trial court could reasonably conclude this did not evidence group bias. " 'Trial lawyers recognize that it is a combination of factors rather than any single one which often leads to the exercise of a peremptory challenge. In addition, the particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. . . . [¶] It is also common knowledge among trial lawyers that the same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time of the exercise of the particular challenge and the number of challenges remaining with the other side. . . . Moreover, as the number of challenges decreases, a lawyer necessarily evaluates whether the prospective jurors remaining in the courtroom appear to be better or worse than those who are seated. If they appear better, he may elect to excuse a previously passed juror hoping to draw an even better juror from the remaining panel. [¶] It should be apparent, therefore, that the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar. . . .' " (People v. Reynoso, supra, 31 Cal.4th at pp. 918-919.)

We are also satisfied that the court made a sincere and rational assessment of the prosecutor's challenge to B.D. In evaluating the prosecutor's explanation, "the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine." (People v. Reynoso, supra, 31 Cal.4th at p. 919.) Only when the prosecutor's stated reasons are unsupported by the record, inherently implausible, or both must the court do more than make a "global finding that the reasons appear sufficient." (People v. Silva (2001) 25 Cal.4th 345, 386.) Here, as we explained above, the prosecutor gave reasons for her decision that were supported by the record and were plausible. Although not required, the court went beyond merely stating a "global" finding and explained why she credited the prosecutor's concern about B.D.'s involvement in social work. The court confirmed that the challenged juror had indeed returned one of the "all no's" questionnaires, and stated that she believed the prosecutor's explanation that she was trying to get jurors whose responses to the questionnaire were less indifferent. In short, the court independently assessed the prosecutor's professed rationales and supported its decision with reference to the record and its own observations and credibility assessments. Defendant's claim that the court "abdicated" its responsibility to evaluate the prosecutor's stated reasons lacks merit.

II. Substantial Evidence Supports the Guilty Verdict

Defendant contends the evidence is insufficient to support the murder conviction because it fails to establish implied malice. Specifically, he argues the evidence fails to show he was actually and subjectively aware his actions could endanger someone's life because "[a]lthough he was reported to be weaving between lanes, he had not struck or seemingly endangered anyone before leaving the freeway;" Radney thought he was driving reasonably; and he was driving "on a nearly empty freeway late at night, at a reasonable speed." Unfortunately for defendant, this argument ignores the considerable evidence against him.

A. The Law

In cases of vehicular homicide, "second degree murder based on implied malice has been committed when a person does ' " 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " ' " People v. Watson (1981) 30 Cal.3d 290, 300.) The malice necessary to support a vehicular homicide charge may be implied "when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Id. at p. 296.) A finding of implied malice requires the application of a subjective standard, i.e., whether the defendant actually appreciated the risk involved. (Id. at pp. 296-297.)

" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.)

B. Application

1. Murder

The record in this case amply supports the jury's finding of implied malice. Defendant drank so much before the accident that his blood alcohol content was almost four times the legal limit. Although his license had been revoked for alcohol-related reasons, he drove from Suisun City to Oakland the night of Gelardi's death when he was already "tipsy." He continued to drink when he got to Oakland, presumably knowing that he would be driving back to Suisun City later that night. On the return trip, his driving was so obviously dangerous that a passenger in another car called 911 for fear that he would kill somebody. " 'One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.' " (People v. Watson, supra, 30 Cal.3d at pp. 300-301.)

Defendant's argument that there is no evidence he was unaware of the danger he posed to others due to his intoxication stretches credulity past the breaking point. Defendant had attended multiple DUI education classes due to his prior convictions. If he did not know it before, he was taught in those classes how alcohol impaired his ability to drive; that there is no safe alcohol level at which he could drive; and that driving under the influence kills. He had seen multiple videos about the dangers of drunk driving. Less than a year before he killed Gelardi, defendant signed a statement that he had been advised it is "extremely dangerous to human life to drive under the influence" and acknowledged that he could be charged with murder if he continued to drive while intoxicated and someone were to be killed as a result. As was recently said in People v. Moore (2010) 187 Cal.App.4th 937, 941, the question of whether defendant was subjectively aware of the risk posed by his drunk driving "is best answered by the question: how could he not be?"

Also as in Moore, defendant attempts to contrast his case with others involving fatal accidents in which the courts found sufficient evidence of implied malice. (See, e.g., People v. Watson, supra, 30 Cal.3d at pp. 293-294; People v. Autry (1995) 37 Cal.App.4th 351; People v. Talamantes (1992) 11 Cal.App.4th 968.)1 He contends that each of these cases involved some evidence of an "objective indication" of malice that is not present here. But the existence of implied malice is decided in light of all of the circumstances (People v. Moore, supra, 187 Cal.App.4th at p. 942; People v. Thomas (1992) 2 Cal.4th 489, 516), and none of the cases defendant cites suggest that implied malice could not be found in the circumstances of this case. Taken together, the evidence of defendant's actions the night of Gelardi's death and his prior history as a drunk driver and its consequences constitute substantial evidence that he acted with implied malice.

2. Implied Malice

The same evidence undermines defendant's contention that the evidence was insufficient to prove gross vehicular manslaughter. " '[G]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] "The state of mind of a person who acts with conscious indifferences to the consequences is simply, 'I don't care what happens.' " [Citation.] The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved.' "2 (People v. Ochoa, supra, 6 Cal.4th at p. 1204.) It "may be shown from all the relevant circumstances, including the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct." (Id. at pp. 1207-1208 [evidence was sufficient where the defendant had attended traffic school and alcohol-awareness class as a result of a prior DUI, but nonetheless drove with a 0.15 blood alcohol level at illegal speeds, wove in and out of adjoining lanes, made abrupt and dangerous lane changes without signaling, and did not brake to avoid colliding with his victims' car].)

Here, defendant was driving with almost four times the legal blood alcohol content when he killed Gelardi. For at least six miles before the crash he was driving erratically enough to prompt Dineen to call 911. We have no doubt the jury reasonably found that defendant, by virtue of his prior DUI's, was particularly well-versed in the dangers of combining alcohol and driving. The evidence amply supports the conviction for gross vehicular manslaughter.

III. The Admission of Late-Discovered Photographs

Finally, defendant argues that the court's admission of photographs the prosecutor discovered only near the end of her case-in-chief violated reciprocal discovery rules and constitutional guarantees of fundamental fairness. Here too, we disagree.

A. Background

One theory advanced by the defense was that the accident was caused by a tire blowout rather than defendant's intoxication.3 During the prosecutor's case-in-chief, Ms. Hill told the prosecutor she had several photographs of defendant's car taken shortly after the accident that showed the right rear tire of the car was not flat. The prosecutor immediately showed the photos to defense counsel, who moved to exclude them as "late discovery" and argued that their introduction would compromise his defense and make it appear he had tried to deceive the jury when he contended the accident was caused by tire failure. The prosecutor argued in response that "When you base your defense on a falsehood, sometimes this happens. Officer Fondersmith testified early on that the tires were not flat. Officer Sanders thought that the tires were not flat. Officer Grimes provided reports saying he didn't believe the tires contributed. And the 402 hearing quite sometime ago, Officer Grimes testified that he believes that the tire went flat at some point while sitting in storage prior to inspection. So I don't believe that these photos are a surprise. And based on the fact that the defense is preceding [sic] with a blowout theory with in my opinion of blatant perjury on behalf of Lynn Radney that it's to be expected that the People were lucky enough to find additional evidence that was unknown previously and [were] able to rebut it." She explained that Hill only realized her photos might be important after she was excused as a witness and permitted to listen to the proceedings. She then observed defendant introduce more recently taken photographs that showed one of defendant's tires had deflated.

The trial court overruled the defense objection. It found there was no discovery violation and that defense counsel was previously aware the prosecution had other evidence that the tire did not fail before or during the accident. Defendant also moved unsuccessfully for a new trial on these same grounds.

B. Analysis

Defendant appears to concede, correctly, that the prosecutor violated neither the reciprocal discovery statutes (Pen. Code, §§ 1054 et seq.) nor her obligation to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83. The record definitively establishes that the photographs were incriminating, not exculpatory (they were extremely damaging to defendant's story that the accident was caused by a blowout) and that the prosecutor provided them to defense counsel as soon as she learned of them. Defendant nonetheless urges us to find his Fourteenth Amendment right to a fundamentally fair trial required exclusion of the photographs because, he maintains, their admission was "devastating" to a defense developed in good faith, and because the prosecution failed to "ma[k]e inquiry" by asking surviving family members whether they had any incriminating photographs (or, presumably, any incriminating evidence at all) in their possession.

Neither point has merit. The prosecutor owes no duty to defendant to investigate whether any member of the victim's family might possess evidence that supports the prosecution. In re Littlefield (1993) 5 Cal.4th 122, which defendant argues is analogous, fails to support his position. In that case defense counsel tried to evade his statutory duty to disclose defense witness information by deliberately refusing to learn the witness's addresses. (Id. at p. 129-136.) The court held that the intentional failure to obtain readily accessible information in order to avoid an explicit statutory command to disclose witness information was improper. (Id. at p. 136.) But that is not the situation here. It is undisputed that the prosecutor, through no fault on her part, was unaware of the photographs until midway through trial--at which point she immediately disclosed them to defense counsel. Furthermore, Littlefield itself relies on the rule that "[t]here is no general duty on the part of the police or the prosecution to obtain evidence, conduct any tests, or ' "gather up everything which might eventually prove useful to the defense." ' " (Id. at p. 135.) The prosecutor here was under no obligation to seek out inculpatory evidence not subject to mandatory disclosure. (See People v. Ochoa (1998) 19 Cal.4th 353, 473 [due process only requires prosecutor to disclose exculpatory evidence].)

Nor did the admission of the photographs render the trial fundamentally unfair within the meaning of Due Process Clause analysis. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. [The United States Supreme Court], therefore, [has] defined the category of infractions that violate 'fundamental fairness' very narrowly" as encompassing only those which " 'violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions." ' " (Dowling v. United States (1990) 493 U.S. 342, 352.) Here, defendant knew before trial that the prosecutor intended to introduce evidence, including the testimony of four California Highway Patrol officers and a post-collision vehicle inspection report, to show that none of defendant's tires were flat immediately after the accident. While the late-discovered photographs provided strong corroboration of that evidence, they did nothing more than bolster a strong case that defense counsel knew he would have to counter when he designed his trial strategy. Defendant concedes the prosecution "had not been 'sandbagging,' " and his accusation that his victim's family "seemingly" had is unwarranted. The introduction of the photographs did not deprive defendant of a fair trial.


The judgment is affirmed.

We concur: Pollak, Acting P.J. Jenkins, J.

1. Defendant also cites unpublished cases, in contravention of rule 8.1115(a) of the California Rules of Court. His reliance on those cases is improper and will not be considered.

2. However, a jury may also consider the driver's subjective knowledge, for if a "defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate." (People v. Ochoa (1993) 6 Cal.4th 1199, 1205.)

3. Defendant also suggested the accident was caused by some other mechanical failure.

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