Opinion
G060643
12-15-2022
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JAMES NANI, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 18HF0495, Sheila F. Hanson, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant Edward James Nani was convicted of second degree murder under a theory of implied malice that was deemed applicable to drunk drivers in People v. Watson (1981) 30 Cal.3d 290 (Watson). On appeal, he contends Watson is unfair and outdated, and his jury was misinstructed in various respects. We discern no instructional error, however, and as an intermediate appellate tribunal, we are powerless to overrule the Supreme Court's decision in Watson. We therefore affirm the judgment.
FACTS
On March 31, 2018, appellant volunteered at a long-distance running race in the Cleveland National Forest. He consumed about a dozen drinks over the course of the day before deciding to head home around 8:00 p.m. While driving east on the Ortega Highway, appellant was driving so erratically a fellow motorist called 911 to report him. The call was in vain. A short time later appellant crossed over the center line and collided head-on with a vehicle traveling in the opposite direction. The crash killed the driver of that vehicle and seriously injured the passenger.
Appellant suffered only moderate injuries. When the police contacted him at the scene, he had bloodshot eyes and smelled of alcoholic beverages. He admitted he'd had too much to drink that night. In fact, breath and blood samples obtained in the wake of the crash indicated appellant's blood-alcohol level was between .13 and .17 percent, roughly twice the legal limit for operating a motor vehicle.
At trial, the parties stipulated appellant suffered a prior conviction for driving under the influence (dui) in 2010. In conjunction with that offense, appellant was required to attend a seminar which explained the dangers of drunk driving. Like all attendees, appellant was given a Watson advisement that warned him he could be charged with murder if he ever killed someone while driving under the influence of alcohol.
During his testimony, appellant admitted he actually suffered two dui convictions before the present case arose, one in 2010, and another in 2002. However, despite everything he was told on those earlier occasions, he still did not understand all of the legal ramifications of driving while intoxicated. Appellant insisted he was not under the influence when he caused the fatal accident in this case. While admitting he'd had a few drinks that afternoon, he said he took a nap before heading out and felt safe to drive. But for some reason, he fell asleep behind the wheel before the crash and has no memory of how it occurred.
As part of appellant's case, defense counsel presented several character witnesses on his behalf. The defense also presented an expert witness who assailed the prosecution's forensic evidence and opined appellant was not under the influence at the time of the crash. However, the jury convicted appellant of second degree implied malice murder and two dui offenses. It also found he inflicted great bodily injury on the surviving victim and suffered a prior conviction for dui. The trial court sentenced him to prison for 15 years to life, plus five years, for his crimes.
DISCUSSION
Failure to Instruct on Manslaughter
Appellant does not dispute there is sufficient evidence to support his conviction for implied malice murder. However, he maintains the trial court erred by failing to sua sponte instruct the jury on the lesser crimes of gross vehicular manslaughter while intoxicated and involuntary manslaughter. Appellant argues this failure violated his right to due process, a fair trial and equal protection, but we find nothing wrong with the court's instructions.
Broadly speaking, there are two types of criminal homicide in California, murder and manslaughter. Apart from felony murder, murder requires malice, either express or implied. (People v. Rios (2000) 23 Cal.4th 450, 460.) Express malice exists when the defendant possesses the intent to kill, whereas implied malice requires the defendant to do an act whose natural consequences are dangerous to life, with knowledge of and in conscious disregard of that danger. (Watson, supra, 30 Cal.3d at p. 300.)
In contrast, manslaughter is "the unlawful killing of a human being without malice." (Pen. Code, § 192.) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being while driving with gross negligence and in violation of the dui laws. (Pen. Code, § 191.5, subd. (a).) And involuntary manslaughter occurs when the defendant commits a specified act "without due caution and circumspection[,]" which is equivalent to criminal negligence. (Pen. Code, § 192, subd. (b).) However, the crime of involuntary manslaughter does "not apply to acts committed in the driving of a vehicle." (Ibid.)
In Watson, the Supreme Court ruled, "'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.'" (Watson, supra, 30 Cal.3d at pp. 300-301, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 897.) Therefore, when a drunk driver causes a crash that results in the death, he may be charged with implied malice murder, which is a form of second degree murder. (Watson, supra, 30 Cal.3d at pp. 294, 299.)
The question presented here is whether having been charged with implied malice Watson murder, appellant was entitled to have his jury instructed on the lesser offenses of gross vehicular manslaughter while intoxicated and/or involuntary manslaughter. A trial court must instruct on all lesser included offenses that are supported by substantial evidence. (People v. Duff (2014) 58 Cal.4th 527, 561.) That duty arises "whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense." (Ibid.) But the trial court is not required to instruct on lesser related offenses, which are not necessarily included in the stated charge "but merely bear some conceptual and evidentiary 'relationship' thereto." (People v. Birks (1998) 19 Cal.4th 108, 112-113, 136.)
As appellant acknowledges, our Supreme Court has held that while gross vehicular manslaughter while intoxicated may be a lesser related offense of murder, it is not a lesser included offense because the statutory elements of murder do not include intoxication or driving, which are required for gross vehicular manslaughter while intoxicated. (People v. Sanchez (2001) 24 Cal.4th 983, 989.) Therefore, the trial court was not required to instruct the jury on gross vehicular manslaughter while intoxicated. (People v. Wolfe (2018) 20 Cal.App.5th 673, 685-686 (Wolfe).) Moreover, instructions on involuntary manslaughter were prohibited because, as we have noted, that offense does not apply in driving cases. (Pen. Code, § 192, subd. (b).)
Nevertheless, appellant contends the absence of manslaughter instructions violated his constitutional rights because it required the jury to make an all-or-nothing choice between convicting him of murder or acquitting him altogether. However, there is no constitutional right to jury instructions on lesser related offenses. (People v. Foster (2010) 50 Cal.4th 1301, 1343-1344.) And, as this court explained in Wolfe, the failure to instruct on manslaughter in a Watson prosecution does not offend equal protection principles. (Wolfe, supra, 20 Cal.App.5th at pp. 684-690.)
We reached that conclusion in Wolfe for two reasons. First, as compared to defendants who are charged with other types of implied malice murder, Watson defendants do not receive unequal treatment under the law. (Wolfe, supra, 20 Cal.App.5th at p. 687.) Second, even if Watson defendants suffered a unique hardship by virtue of being denied instructions on manslaughter, such discriminatory treatment was rationally related to the state's legitimate interest to "appropriately punish - and also perhaps to discourage - people from engaging in the highly dangerous conduct of driving under the influence. [Citation.]" (Id. at p. 690.)
In arguing Wolfe was wrongly decided, appellant points out that if a defendant is charged with implied malice murder outside the context of drinking and driving, the trial court must instruct on manslaughter as a lesser included offense if there is substantial evidence to support that lesser crime. (See People v. Brothers (2015) 236 Cal.App.4th 24, 29-30.) However, for the reasons explained above, manslaughter instructions are prohibited in Watson cases, even if there is substantial evidence to support them. Appellant sees this as being illogical and unfair, but the "exclusion of manslaughter as a lesser included offense of Watson murder does not implicate a fundamental right, and [appellant] does not claim to be a member of a suspect class." (People v. Munoz (2019) 31 Cal.App.5th 143, 162.) Therefore, any differential treatment afforded Watson defendants need only be rationally related to a legitimate state interest in order to survive constitutional scrutiny. (Ibid.)
In that regard, it is undisputed that deterring people from driving under the influence is "'a highly important governmental interest."' (People v. Munoz, supra, 31 Cal.App.5th at p. 160, quoting Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1338.) The vehicular manslaughter statutes further this goal by providing additional penalties for people whose intoxicated operation of a motor vehicle results in the taking of innocent life. (Id. at p. 161-162.) "The fact that, as a consequence of this statutory scheme, courts no longer must instruct on either involuntary or vehicular manslaughter as a lesser included offense of a Watson murder does not render the scheme invalid." (Id. at p. 161 [rejecting appellant's constitutional challenges to that scheme]; accord, People v. Bettasso (2020) 49 Cal.App.5th 1050, 1059, fns. 8 & 9 [the absence of manslaughter instructions in a Watson prosecution does not violate equal protection, due process or any other constitutional right].) Thus, the trial court's failure to instruct the jury on manslaughter is not cause for reversal.
Jury Instruction on Implied Malice
Appellant also asserts the trial court improperly instructed the jury on the concept of implied malice. Again, we disagree.
Pursuant to CALCRIM No. 520, the trial court instructed the jury appellant "had implied malice if: [¶] One, he intentionally committed [an] act. [¶] [Two], the natural and probable consequences of the act were dangerous to human life. [¶] Three, at the time he acted, he knew his act was dangerous to human life. [¶] And, four, he deliberately acted with conscious disregard for human life."
According to appellant, this definition of implied malice was inadequate because it allowed the jury to convict him of murder by finding his actions were "dangerous" to human life, rather than requiring proof that his conduct had a "high probability" of causing death. Even though appellant did not raise this claim in the trial court or object to CALCRIM No. 520 on any basis, we will consider his claim because he contends the instruction misstated the law and lowered the prosecution's burden of proof. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, disapproved on other grounds in People v. Scott (2009) 45 Cal.4th 743 [the trial court has a sua sponte duty to correctly instruct the jury on all of the legal principles applicable to the case]; see also Pen. Code, § 1259 [instructional errors bearing on the defendant's substantial rights are reviewable on appeal even in the absence of an objection in the trial court].)
Appellant's argument rests on the assumption that the high-probability-of-death standard is stricter than the dangerous-to-human life standard. However, Watson's description of implied malice indicates otherwise. In that case, the Supreme Court stated, "[S]econd 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'" . . . .' [Citation.] Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]" (Watson, supra, 30 Cal.3d at p. 300, italics added.)
By pairing the two standards together in this fashion, the Watson court signaled the high-probability-of-death standard is simply another way of expressing the dangerous-to-human life standard. Indeed, since Watson was decided, the Supreme Court has repeatedly stated that these two standards are substantively the same and that the dangerous-to-human life standard accurately conveys the mental state required for implied malice murder. (People v. Knoller (2007) 41 Cal.4th 139, 152; People v. Nieto Benitez (1992) 4 Cal.4th 91, 104; People v. Dellinger (1989) 49 Cal.3d 1212, 1219-1222; see also People v. Cleaves (1991) 229 Cal.App.3d 367, 378-379 [the two standards are "alternative definitions for the same concept" and "can be viewed as synonymous - i.e., an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death."].)
Appellant rightly notes that some individual Justices have expressed differing views on this topic in concurring opinions. (See, e.g., People v. Cravens (2012) 53 Cal.4th 500, 512 (conc. opn. of Liu, J.); People v. Nieto Benitez, supra, 4 Cal.4th at p. 114 (conc. opn. of Mosk, J.).) But those minority viewpoints are not the law (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383), and we are not at liberty to follow them in the face of contrary Supreme Court authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Therefore, we uphold the trial court's instruction on implied malice as a correct statement of the law. The instruction did not mislead the jury or lower the prosecution's burden of proof in any respect.
Continued Validity of Watson
Lastly, appellant claims Watson was wrongly decided because the crime of dui does not create a high probability of death. He asks us to reconsider the Watson murder doctrine, which he describes as an outdated legal fiction, but as a lower appellate court our hands are tied. Under the doctrine of stare decisis, we must follow decisions from the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) So even if we disagreed with the holding in Watson - which we do not - it would not change the outcome here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J. MOTOIKE, J.