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People v. Ortiz6/30/2004
Defendant Arturo Ortiz was convicted of two counts of second degree murder (counts 1 and 2); the jury acquitted him of driving with a blood alcohol content of .08 percent or more (count 4). After the jury failed to reach a verdict on the charge that he had been driving under the influence of alcohol (count 3), that count was dismissed. Defendant contends on appeal that the court erred when it denied his motion for a new trial by failing to apply the proper standard of review. He further argues the court erred when it denied his motion to bifurcate trial on counts 1 and 2 from counts 3 and 4, because the latter counts were charged as felonies based on a prior conviction for driving under the influence. In addition, he contends the jury was prevented from convicting him of a lesser related offense when the court erroneously refused to instruct the jury with CALJIC No. 8.90 (gross vehicular manslaughter not involving drugs or alcohol) and CALJIC No. 8.93 (gross vehicular manslaughter while intoxicated).
The Attorney General concedes the first issue and argues that we should either remand the matter for a new ruling on the motion for new trial or affirm by deeming the error harmless. Application of the correct standard permits a trial court to sit as a thirteenth juror and assess the credibility of witnesses, something we cannot do from the record. We therefore reverse and remand the matter for reconsideration of the motion for new trial limited to the issue raised relating to the sufficiency of the evidence to support the second degree murder convictions.
FACTS
Early one August evening, defendant swerved his vehicle, to avoid rear-ending a black pickup truck that braked suddenly in front of him, and crossed over the median into oncoming traffic. His silver pickup truck collided with a smaller vehicle, killing the driver and a young child and injuring the other three passengers. Defendant's truck left skid marks approximately 100 feet in length, then turned onto its side after hitting the other vehicle before sliding to a stop. Defendant's passenger, Elizabeth Iglesias, sustained a fractured rib and foot. While being treated for her injuries, Iglesias told the police defendant had been speeding between 60 to 80 miles per hour when the black truck suddenly moved in front of them and braked; she later denied making such statements and testified defendant had been driving between 40 and 45 miles per hour.
The accident occurred on Flower Street where the posted speed limit is 40 miles per hour. Julie Stringer had just turned onto Flower from Dyer Road when she looked in her rearview mirror and saw the black truck approaching from behind at a high rate of speed. Stringer was driving 30 miles per hour. As the black truck went through the intersection, Stringer saw defendant's silver truck; the two trucks "flew past [her] ... going ... way more than twice the speed [she] was going." The trucks swerved in and out of the northbound lanes; "[t]hey were bumper to bumper." When the black truck hit its brakes, the silver truck swerved toward oncoming traffic.
*2 Julio Cordero first noticed the two trucks at the intersection of MacArthur and Flower. When the light turned green, the trucks took off at a high rate of speed before stopping at the next light. Cordero was driving between 35 and 40 miles per hour. He estimated the speed of the trucks at between 45 and 55 miles per hour or higher.
An accident reconstruction expert testifying for the defense estimated that defendant had been driving between 50 and 55 miles per hour before braking and swerving into oncoming traffic, based in part on an assumption that the vehicle defendant hit was traveling the posted speed limit. In contrast, the prosecution's accident reconstruction expert calcula
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