Opinion
F073680
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ANGELITO AMANCIO ROMERO, Defendant and Appellant.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carols A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F13905308)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carols A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Angelito Amancio Romero had prior convictions for driving under the influence in 1990, 1996, and 2008. After the 2008 conviction, the court admonished him that he could be charged with murder if someone died as a result of his driving under the influence, but he did not change his behavior.
In 2013, defendant was driving under the influence on the highway, and his girlfriend was sitting in the front passenger seat. Defendant was driving 80 miles an hour when his van crossed over the traffic lanes, crashed into a tree on the right shoulder, and went into a spin. Defendant's girlfriend was thrown into the backseat; she died at the scene as a result of blunt force trauma. Defendant's blood-alcohol level was determined to be between 0.17 percent and 0.175 percent at the time of the fatal collision.
After a jury trial, defendant was convicted of second degree murder and sentenced to 15 years to life.
On appeal, defendant argues the court had a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense of murder. Defendant acknowledges that a statute expressly prohibits giving such an instruction, but asserts this statutory prohibition is invalid based on several opinions from the California Supreme Court. He also asserts the statute violates his constitutional rights to due process and equal protection. Defendant argues that the court's alleged failure to instruct on involuntary manslaughter as a lesser included offense was prejudicial because it is reasonably probable the jury would have returned a verdict on that offense instead of murder.
Defendant further contends the court abused its discretion when it admitted evidence of two prior uncharged incidents that occurred a few months before the fatal collision, when he drove after consuming alcohol. Defendant argues the evidence was prejudicial because he was not arrested or charged in the two prior incidents.
We affirm.
FACTS
Defendant and his girlfriend, Jennifer Starr, lived in Reedley. Dianna Flores, defendant's daughter, testified that defendant and Starr went to a pool hall known as "The Break Room" every Thursday night to participate in pool tournaments. The pool hall was located near Highway 99 and Ashlan Avenue in Fresno.
S.S., Starr's 13-year-old son, lived with defendant and Starr. On Thursday, June 6, 2013, defendant returned home from work around 4:30 p.m. S.S. testified defendant smelled like beer when he got home that afternoon. Once defendant was home, S.S. saw him drink one large bottle and two small cans of beer.
K.S., Starr's 17-year-old daughter, saw defendant drink around four cans of beer after he got home that afternoon.
Defendant and Starr were going to the pool hall that night. Defendant told S.S. to pack four or five cans of beer in a plastic bag because he wanted to take them to the pool hall. S.S. put the beers in a plastic bag and gave them to defendant.
Defendant and Starr left for the pool hall in their van. K.S. testified defendant smelled like alcohol when he left with Starr, and he often smelled like that so it "was sort of normal." Defendant and Starr at the pool hall
Flores testified that she arrived at the pool hall around 6:30 p.m. Defendant and Starr arrived later. Flores saw defendant holding a beer, but she did not know how many he drank that night.
Jason Sorenson was also at the pool hall. He testified that defendant was holding a beer in his hand whenever he was walking around the room. Sorenson did not know if defendant held the same beer or had multiple drinks.
Sometime between 9:00 p.m. and 9:30 p.m., defendant and Sorenson left the pool hall with friends. They walked to the "Bottoms Up" bar that was next door. They all had "a shot" of liquor together. Sorenson thought defendant had only one shot.
Sorenson testified defendant was happy, relaxed, and "loosened up." Defendant did not appear that "he was going to fall over. He wasn't tipping, leaning, slurring, nothing of that sort." After they had the drinks, Sorensen left for the evening, but defendant returned to the pool hall.
Flores left the pool hall around 11:30 p.m. Defendant and Starr were still there. As she left, Flores asked defendant and Starr if they were okay, and they said yes. Flores testified it was "obvious" that Starr had been drinking.
Prior to trial, Flores told the police that she saw defendant drink a couple of beers at the pool hall that night. Flores said defendant was not drunk, but she could smell alcohol on him. Flores told defendant to be careful getting home.
Sometime after 11:00 p.m., K.S., Starr's daughter, received a text message from Starr that she was on her way home.
THE FATAL CRASH
Sometime after midnight on June 7, 2013, Bryan Wright was driving on southbound Highway 99, between McKinley and Olive Avenues in Fresno. Wright was in the center lane and going 70 miles per hour.
Wright testified that a van passed him in the far left lane. It was later determined that defendant was driving the van and Starr was in the front passenger seat. Wright testified the van was going "at a very high rate of speed, probably about 80 miles an hour." The van suddenly veered to the right and went in front of Wright's vehicle. The van went across the other two traffic lanes, "did a quick turn right in front of me" and crashed "right into a tree" on the right shoulder of the highway.
Wright testified the driver of the van did not appear to slow down, brake, or try to pull back onto the roadway. Wright believed the van was still going 80 miles an hour when it hit the tree.
Wright immediately pulled over and called 911. There was dust flying around from the van's impact into the tree. Wright went to check on the occupants of the van. The vehicle's entire front-end was smashed in. Starr was in the back seat and appeared to be dead. Wright thought defendant, who was in the driver's seat, was also dead, but he started moving around.
Just before 1:00 a.m., law enforcement officers and paramedics responded to the scene. The airbags in the front seat had opened.
Defendant was pinned in the driver's seat. He was not wearing a seatbelt. No one was sitting in the front passenger seat. The seatbelt for the front passenger seat was loosely hanging from the right pillar, which indicated it may not have been worn at the time of the collision.
Starr was lying in the back seat, directly behind the driver. She was not restrained. Her head was facing the rear of the car. She had suffered blunt force trauma and did not have a pulse. Starr was pronounced dead while her body was still in the backseat of the van. Defendant's statements at the scene
When the officers initially reached defendant, he repeatedly asked what happened to his girlfriend and said she had been sitting in the front passenger seat.
Defendant was removed from the driver's seat with extrication equipment. Defendant had an open femur fracture, a laceration above his right eye, and a laceration on his right arm. He did not have any abrasions on his body that would have been consistent with wearing a seatbelt at the time of impact.
Defendant was fully oriented at the scene, identified himself and Starr by name, and gave their birthdates. Defendant said he had been driving southbound and dropped off some friends. Defendant said he did not know what happened, and he lost consciousness on impact. Defendant did not give a reason for the crash. Defendant did not say anything about Starr allegedly grabbing the steering wheel or taking control of the vehicle.
An officer at the scene asked defendant if he had been drinking. Defendant said, " 'I had a couple of beers earlier.' "
Defendant had red and watery eyes. He was unable to perform field sobriety tests because of his injuries.
Defendant was taken to the hospital for treatment. While defendant was being transported in the ambulance, a firefighter asked if he had consumed any alcohol. Defendant said he had approximately six beers. The firefighter asked if he had anything to eat. Defendant said he had nothing to eat all day. Defendant's blood-alcohol levels
When defendant was in the ambulance, an officer administered a Breathalyzer test using a Preliminary Alcohol Screening (PAS) device at 1:14 a.m. It indicated defendant's blood-alcohol level was 0.144 percent.
At 2:04 a.m., a blood sample was taken from defendant at the hospital. It indicated his blood-alcohol level was 0.15 percent.
Based on these tests and defendant's statements, a criminalist testified that defendant's blood-alcohol level at the time of the fatal collision was between 0.17 and 0.175 percent. Starr's fatal injuries
The pathologist determined that Starr's fatal injuries consisted of subarachnoid hemorrhaging in the brain, two fractures in her neck, multiple rib fractures, contusions to the lungs, internal bleeding in the chest cavity, a small tear in the aorta, multiple abrasions to her liver and left kidney, multiple pelvic fractures, and abrasions along the entire left side of her body from her shoulder to her leg.
Based on a blood test taken during the autopsy, Starr's blood-alcohol level was 0.16 percent. Investigation at the scene
The investigating officers determined defendant was traveling southbound at approximately 80 miles an hour. He was in the far left lane when the van made a sharp right turn, crossed over the other two traffic lanes, and went 64 feet off the road. The van continued onto the dirt on the right shoulder, hit a large eucalyptus tree, and went into a 180-degree spin. The van stopped 32 feet from the tree, and it was facing northbound. There was major front-end damage on the vehicle.
There were no skid marks or other evidence suggesting that defendant tried to avoid hitting the tree. The van did not have any prior mechanical condition that would have caused or contributed to the collision.
There were parts of the damaged van scattered on the highway and shoulder, including a tire, the right front door, the front bumper, and the front hood. The front right tire was torn and the left rear tire was flat. There was extensive damage to the front right side of the engine, which had been smashed from front to back. The rack and pinion steering connection was cracked, so that the steering wheel spun around continuously without stopping.
DEFENDANT'S PRIOR CONVICTIONS FOR
DRIVING UNDER THE INFLUENCE
The prosecution introduced evidence of defendant's prior convictions for driving under the influence (DUI), and evidence about two prior uncharged incidents. 1990 and 1996 prior convictions
At 8:30 a.m. on August 10, 1996, defendant was stopped in Reedley for driving under the influence. He had a blood-alcohol level of 0.13 percent.
On September 23, 1996, defendant pleaded guilty to driving under the influence, and admitted a 1990 prior DUI conviction (Veh. Code, § 23152, subd. (b).) The court suspended defendant's license for 18 months and ordered the installation of an ignition interlock device on his vehicle for two years after his license was reinstated; service of 45 days in custody; and attendance of a second offender (Level 2) 18-month DUI school.
An investigator from the district attorney's office testified that when the court ordered defendant to attend the Level 2 DUI school in 1996, it was consistent with defendant having a prior DUI conviction within a certain time period. However, the investigator determined that defendant's records from a prior 1990 DUI arrest and conviction had been purged from both the court system and police department records. 2008 prior conviction
Defendant testified at trial that he had a DUI conviction in 1990, and he was ordered to attend a class about the dangers of driving while intoxicated.
On March 22, 2008, defendant was driving in Reedley. At 1:58 a.m., an officer conducted a traffic stop because he was traveling without headlights. Defendant smelled of alcohol, had slurred speech, and his eyes were red, bloodshot, and watery. Defendant said he had consumed two 12-ounce cans and two 16-ounce cans of beer. His wife was in the car with him. When defendant stepped out of the vehicle, he had an unsteady gait and moved slowly. Defendant failed field sobriety tests.
Defendant was arrested. The officer administered a Breathalyzer test and defendant's blood-alcohol content was 0.10 percent at 2:42 a.m., and 0.11 percent at 2:46 a.m.
Second degree murder admonishment
On June 23, 2008, defendant pleaded no contest to misdemeanor driving under the influence with a blood-alcohol level above 0.08 percent (Veh. Code, § 23152, subd. (b)). It was stipulated that his blood-alcohol levels had been 0.10 and 0.11 percent.
Defendant signed a change of plea form that stated the following admonishments:
"You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the
influence of alcohol or drugs, or both, and as a result of that driving, someone is killed, you can be charged with murder.Defendant initialed both paragraphs.
"I understand the court's warning that I can be charged with a murder if I kill someone while driving under the influence of alcohol or drugs or both." (Bold print in original.)
At the plea hearing, the court ordered defendant not to "drive a motor vehicle with a measurable amount of alcohol or drugs" in his blood, and that he had to submit to a chemical, urine, or breath test on demand by any probation or peace officer.
Also at the plea hearing, the court read aloud the same advisements to defendant that he had initialed in the change-of-plea form: He could be charged with murder if someone was killed as a result of driving under the influence. Defendant said he understood. The court warned defendant: "Be careful out there."
The court placed defendant on probation for three years and ordered him to complete a "First Offender Level 1" DUI class. Defendant was eligible for the "First Offender" class because his prior 1996 DUI conviction had "washed out" by that time. Defendant enrolled and completed the course.
Joseph Montes, a director of state-certified DUI schools in the Fresno area, testified the curriculum presented in the first- and second-offender DUI courses included statistics, vehicle crashes, BAC, and the effects of drinking and using drugs. The first-offender program was a two-hour unit covering DUI laws and consequences, and another two-hour unit specifically on the consequences of drinking and driving. The first offender course also teaches students that driving under the influence of alcohol is a dangerous activity, and that alcohol impairs a person's ability to successfully operate a motor vehicle. The second offender course covers the same subject matters as the first offender course, but included more face-to-face and group counseling sessions. Prior uncharged incidents
The prosecution also introduced evidence about two prior incidents where defendant drove after consuming alcohol. These incidents did not result in arrests or charges. J.S., Starr's 24-year-old daughter, testified both incidents occurred in 2013, two to four months before Starr's death.
On appeal, defendant contends the court improperly admitted evidence of the prior uncharged DUI incidents.
J.S. testified the first incident happened when she went with defendant and Starr for one of the Thursday night pool tournaments. Defendant drank beer and appeared intoxicated. J.S. and Starr were also drinking. Defendant and Starr argued, defendant slurred his words, and he reeked of beer. Starr did not want to drive home with defendant because he was drunk and they were fighting. Starr decided she was going to walk home. J.S. and Starr walked on the street while defendant followed them in the car. Defendant kept telling Starr to get into the car.
J.S. testified that defendant drove up behind Starr and hit her with the car. Starr went up over the hood and suffered bruises on her legs. Defendant got out of the car and apologized. Starr threw her purse at him and then got back into the car. J.S. believed defendant did not intentionally run into Starr. The incident was not reported to the police.
J.S. testified the second incident occurred about a month and a half before Starr died. J.S. again went to the pool room with defendant and Starr, and J.S. drank one or two beers. She did not see how many drinks defendant consumed, but he acted intoxicated. He was yelling and slurring his words. Defendant drove Starr and J.S. home. When he got to Reedley, defendant misjudged a turn, swerved, and almost hit a power pole. J.S. testified the police were not contacted about the second incident.
J.S. testified there were two or three other occasions when she was with defendant in the car, and Starr asked him to pull over and let her out because he was intoxicated. Starr had also been drinking on those occasions. Defendant refused to pull over and kept driving.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified Starr drove to the pool hall on the evening of the fatal crash. Starr had a Bloody Mary with vodka before they left the house. S.S., Starr's son, packed some beers that defendant took with him. Defendant and Starr drank beer during the drive to the pool hall.
Defendant admitted he had eight drinks before the fatal crash: he had one beer at home, two beers in the van on the way to the pool hall, and four beers and a shot at the pool hall and the nearby bar. Defendant was pretty sure that Starr was also drinking at the pool hall, and she had three "shots" at the bar.
Defendant testified he wanted to leave the pool hall but Starr wanted to stay, and they argued about it. They also argued because Starr thought defendant was involved with a woman who was at the pool hall. They finally left sometime after midnight.
Starr was supposed to drive them home, but she was intoxicated. Defendant decided that he would drive instead. Defendant testified he was not intoxicated because he stopped drinking about 30 minutes before they left the pool hall. He admitted that he was "a little buzzed," but he was not falling, swerving, or "talking funny." Starr sat in the front passenger seat. They both wore seatbelts.
Defendant testified that he gave a ride to another couple from the pool hall. He could not remember their names. Defendant dropped off the couple at their house, stopped for gasoline, and then he got on southbound Highway 99 to drive home to Reedley. Defendant was going between 65 to 70 miles per hour in the far left "fast" lane.
Defendant testified that during the drive, Starr again accused him of being involved with the other woman. Defendant denied it, Starr yelled at him, and they argued. Defendant claimed that Starr had been wearing her seatbelt, but she suddenly "got off her seat" and grabbed the steering wheel. Defendant did not know if Starr released her seatbelt before she grabbed the steering wheel. Defendant lost control of the van and did not have time to react. The van crossed over three lanes and crashed into the tree.
Defendant testified that Starr was in the control of the van when it crossed over the lanes and crashed into the tree: "I was not in control [of the van] at the time of the accident." Defendant admitted that he spoke to first responders while he was being treated at the scene of the crash. He gave his name and birthdate, and identified Starr, but he did not tell anyone that Starr grabbed the steering wheel. Defendant testified he did not mention this fact because he did not trust the police.
Defendant admitted that he was convicted of driving under the influence (DUI) in 1990 and ordered to attend a class about the dangers of driving while intoxicated.
Defendant had another DUI conviction in 1996 when his blood-alcohol level was 0.13 percent. Defendant testified that in the 1996 case, he felt fine when he was stopped by the police, he just felt "[a] little buzz," he was given sobriety tests, and "they said I failed it," but "I know I was fine." Defendant testified he was ordered to serve time in jail, his driver's license was suspended, and he was ordered to attend DUI school again. The court also ordered him to install an ignition lock on his vehicle that would not allow him to drive if he had alcohol on his breath. His probationary period for that offense had ended by the time of the fatal crash in this case, so there was no longer an ignition lock on his car.
In 2008, defendant was again convicted of DUI when his blood-alcohol level was 0.10 or 0.11 percent. Defendant testified he felt fine when he was pulled over by the police, and claimed he was charged because the officer did not like him. He was placed on probation for three years, his driver's license was revoked, and he again went to DUI school. Defendant claimed he entered a plea and signed the plea form because his attorney told him to. He admitted the plea form contained an advisement that he could be charged with murder if he continued to drive under the influence and someone was killed as a result, and that he initialed and signed the advisement. He also admitted the judge read the same advisement to him.
"Q. Okay. So you were advised on multiple occasions that driving under the influence is dangerous and you could be charged with the murder if somebody died as a result of you driving under the influence?
"A. That's my understanding."
Defendant was "pretty sure" that he was taught in the DUI classes that driving under the influence was dangerous, slowed his reflexes, impaired his ability to drive, and affected his judgment, but he could not remember "everything I've learned" from the classes.
Defendant also admitted he drove while intoxicated on other occasions when he was not stopped by the police. He rejected J.S.'s testimony about these incidents, that he almost lost control of his car and hit a pole, or that Starr got out of his car and he hit her. Defendant admitted there were a couple of instances where Starr wanted to walk home from the pool hall because he was too drunk to drive.
REBUTTAL
K.S., Starr's daughter, rebutted defendant's trial testimony that Starr was driving when they drove from the house to the pool hall on the night of the fatal collision. K.S. testified she was standing on the front porch when defendant and Starr left the house. Defendant was driving the van. It was normal for defendant to drive the van when he went somewhere with Starr.
PROCEDURAL HISTORY
Second degree murder and instructions
An amended information charged defendant with the murder of Starr with malice aforethought, in violation of Penal Code section 187, subdivision (a), with the further allegation that he personally inflicted great bodily injury on the victim (§ 1203.075).
All further statutory citations are to the Penal Code unless otherwise indicated.
Prior to trial, the prosecution filed a trial brief/motion in limine stating that it was pursuing a second degree murder conviction under an implied malice theory pursuant to People v. Watson (1981) 30 Cal.3d 290 (Watson), based on defendant's prior DUI convictions, the murder admonishment he received in his 2008 prior conviction, and driving under the influence in this case.
As we will discuss below, a "Watson murder" is a second degree murder based on implied malice, committed when "the intoxicated killer drove while aware of the risk to life and consciously disregarded that risk,..." (People v. Doyle (2013) 220 Cal.App.4th 1251, 1265.)
The People's motion asserted that there were no lesser included offenses for the murder charge in this case. The People stated that gross vehicular manslaughter while intoxicated, and involuntary manslaughter, were not lesser included offenses of an implied malice second degree murder, as set forth in People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez) and section 192, subdivision (b).
As we will also discuss below, gross vehicular manslaughter while intoxicated is not a lesser included offense of murder, but a lesser related offense for which there is no sua sponte duty to instruct. (Sanchez, supra, 24 Cal.4th at pp. 989-992, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) In addition, section 192, subdivision (b) expressly states that involuntary manslaughter does not apply "to acts committed in the driving of a vehicle."
At a pretrial hearing, the court said it had reviewed the People's motion and agreed that lesser included offenses were not applicable in this case. However, the court deferred any final ruling on the instructions until after the evidence had been introduced.
The court asked defense counsel if he wanted to be heard. Defense counsel replied, "No, I concur."
After the parties rested, the court reviewed the proposed jury instructions. The court stated the defense had requested CALCRIM No. 590 on gross vehicular manslaughter while intoxicated as a lesser included offense of murder. The court asked defense counsel for argument on the matter.
"[DEFENSE COUNSEL]: I'll withdraw it, Judge.Conviction and sentence
"THE COURT: All right. Is that based on the Court's prior ruling on motions in limine and/or trial tactic decision?
"[DEFENSE COUNSEL]: Yes."
On February 29, 2016, defendant's jury trial began. The jury was instructed on second degree murder as the only theory of guilt. The jury was not instructed on any lesser included offenses.
On March 17, 2016, defendant was convicted of second degree murder, and the special allegation was found true.
On April 20, 2016, the court sentenced defendant to 15 years to life in prison.
DISCUSSION
I. Vehicular Homicide and Murder
Defendant contends the court had a sua sponte duty to instruct the jury on involuntary manslaughter as a lesser included offense of second degree murder. He acknowledges that such an instruction is prohibited by section 192, subdivision (b), but asserts this statutory language is no longer valid given the California Supreme Court's rulings in Watson, Sanchez, and other cases. Defendant further asserts the court's failure to give any lesser included instructions violated his constitutional rights to due process and equal protection, and was prejudicial because it is reasonably probable the jury would have found him guilty of involuntary manslaughter based on his testimony that Starr grabbed the steering wheel from him.
Defendant's arguments implicate issues involving vehicular homicide charges in drunk driving cases, second degree murder based on implied malice, and limitations on lesser included offenses in vehicular homicide cases.
In order to address defendant's contentions, we begin with vehicular homicide and murder charges based on drunk driving.
A. Murder and Malice
"Murder is the unlawful killing of a human being ... with malice aforethought." (§ 187, subd. (a).) A murder committed with premeditation and deliberation is first degree murder; all other kinds of murder are of the second degree. (§ 189.)
"Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. [Citation.]" (People v. Knoller (2007) 41 Cal.4th 139, 151; People v. Elmore (2014) 59 Cal.4th 121, 133.)
In a prosecution for second degree murder, malice may be express or implied. (People v. Swain (1996) 12 Cal.4th 593, 601.) Express malice exists "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.)
"Malice is implied ... when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 596.)
B. Vehicular Homicide and Watson
"It is well established that driving while intoxicated is an act which may support a conviction for second degree murder under an implied malice theory. [Citations.]" (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1080 (Ferguson).) "Malice may be implied when a person willfully drives under the influence of alcohol. [Citation.]" (People v. Wolfe (2018) 20 Cal.App.5th 673, 681 (Wolfe).)
In People v. Watson, supra, 30 Cal.3d 290, the court held that in appropriate circumstances, a homicide caused by a drunk driver may be prosecuted as second degree murder based on implied malice when "the facts demonstrate a subjective awareness of the risk created ...." (Id. at p. 298.)
" 'One who wilfully 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.' " (Id. at pp. 300-301, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 897.)
The defendant in Watson had consumed enough alcohol to become legally intoxicated. "He had driven his car to the establishment where he had been drinking, and he must have known that he would have to it drive later." (Watson, supra, 30 Cal.3d at p. 300.) Watson presumed the defendant "was aware of the hazards of driving while intoxicated." (Ibid.) Watson went on to cite the defendant's conduct in driving through city streets at excessive speeds, his near collision with another vehicle after running a red light, and his belated attempt to brake before the fatal crash as "suggesting an actual awareness of the great risk of harm which he had created." (Id. at p. 301.)
Watson thus held that in second degree murder cases based on implied malice, the prosecution must prove the defendant was subjectively aware of the risk of death created by driving while intoxicated. (Watson, supra, 30 Cal.3d at pp 296-297.) "Implied malice is determined by examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his actions. [Citations.] Malice may be found even if the act results in a death that is accidental. [Citation.] It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence. [Citation.]" (People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.) "It is not enough that a reasonable person would have been aware of the risk. [Citation.]" (People v. Moore (2010) 187 Cal.App.4th 937, 941.)
"[C]ourts have identified factors relevant for upholding a murder conviction based on drunk driving: '(1) a blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.' [Citation.]" (People v. Batchelor (2014) 229 Cal.App.4th 1102, 1114, disapproved on other grounds in People v. Hicks (2017) 4 Cal.5th 203, 214, fn. 3; People v. Autry (1995) 37 Cal.App.4th 351, 358.)
While Watson relied on these factors to find evidence of implied malice, " 'nowhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder. Rather, the opinion states that the presence of those factors was sufficient in that case ....' [Citation.]" (Wolfe, supra, 20 Cal.App.5th at p. 683.) "[T]here is no particular formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach. [Citations.]" (People v. Superior Court (Costa), supra, 183 Cal.App.4th at p. 698.)
For example, the fact that a defendant chose to drive, despite being warned by others that he or she was too intoxicated to drive, supports a reasonable inference that the defendant was subjectively aware of the risk posed by driving while intoxicated. (See, e.g., People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092 [affirming murder conviction where the defendant refused offers for a safe ride home, was warned at a bar that she was too drunk to drive and could harm people, and had, on prior occasions, been warned that she was too drunk to drive and might injure someone]; Ferguson, supra, 194 Cal.App.4th at pp. 1077-1079 [affirming implied malice murder conviction where defendant, a Marine, drove while intoxicated despite repeated warnings from friends that he was too intoxicated to drive, and despite routine warnings from the Marine Corps at liberty briefings regarding the dangers of drinking and driving].)
A second degree murder conviction based on implied malice has been affirmed where the evidence showed the defendant drove to a bar or other location with the intention of drinking alcohol and then driving. (See, e.g., People v. Batchelor, supra, 229 Cal.App.4th at p. 1115 [affirming murder conviction where the defendant drove to a bar in order to drink with a friend and intended to drive the friend home after drinking].)
A defendant's prior drunk driving convictions, or attendance at educational programs highlighting the hazards of driving while intoxicated, have also been held to establish implied malice based on the defendant's subjective understanding and conscious disregarding of the risk to human life created by driving while intoxicated. (See, e.g., People v. Marlin (2004) 124 Cal.App.4th 559, 572 [defendant's eight prior convictions for driving under the influence of alcohol provided sufficient basis for no contest plea to implied malice murder charge]; People v. McCarnes (1986) 179 Cal.App.3d 525, 532 [defendant's prior convictions for driving under the influence and attendance at driver's education program as required by sentences on those convictions admissible to show implied malice].)
With this background in mind, we turn to the charge in this case and defendant's appellate arguments.
II. Murder and Gross Vehicular Manslaughter
At trial, defendant requested the court to instruct the jury on gross vehicular manslaughter as a lesser included offense of murder. The court denied the request based on Sanchez, supra, 24 Cal.4th 983, which held that gross vehicular manslaughter was not a lesser included offense of murder, and defendant withdrew the instruction.
As we will explain, defendant relies on Sanchez to argue the court had a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense of murder in this case. As a result, we will review Sanchez's discussion about gross vehicular manslaughter before addressing defendant's claims about Sanchez and involuntary manslaughter.
A. Lesser Included and Related Offenses
" 'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 866.)
"To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' [Citation.]" (People v. Shockley (2013) 58 Cal.4th 400, 404.)
The accusatory pleading test does not apply if the pleading simply states the offense in the language of the statutory definition and does not allege facts specific to the case. (People v. Shockley, supra, 58 Cal.4th at p. 404; People v. Eagle (2016) 246 Cal.App.4th 275, 279.)
In contrast, the court is under no obligation to instruct the jury on lesser related offenses, i.e., offenses that 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; People v. Kraft (2000) 23 Cal.4th 978, 1064-1065.) There is no constitutional right to a jury instruction on a lesser related offense. (People v. Foster (2010) 50 Cal.4th 1301, 1343-1344; People v. Rundle (2008) 43 Cal.4th 76, 148, disapproved on other grounds in People .v Doolin (2009) 45 Cal.4th 390.) " '... California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties. [Citations.]' [Citation.]" (People v. Hall (2011) 200 Cal.App.4th 778, 781.)
On appeal, we independently review whether the court improperly failed to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
B. Murder and Manslaughter
Manslaughter is the unlawful killing of a human being without malice "and is divided into three classes: voluntary, involuntary, and vehicular. (§ 192.)" (People v. Parras (2007) 152 Cal.App.4th 219, 223.)
Voluntary and involuntary manslaughter are "[g]enerally" considered lesser included offenses of murder. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 (Gutierrez); People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Lewis (2001) 25 Cal.4th 610, 645.)
"If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional right to have the jury determine every material issue. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 596.)
While manslaughter is generally defined as a lesser included offense of murder, there are limitations and statutory exclusions prohibiting such an instruction in vehicular homicide cases.
C. Murder and Gross Vehicular Manslaughter
"Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 191.5, subd. (a).)
The elements to prove gross vehicular manslaughter while intoxicated are "(1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful act, such as a Vehicle Code offense with gross negligence, or committing with gross negligence an ordinarily lawful act which might produce death; and (3) as a proximate result of the unlawful act or the negligent act, another person was killed. [Citation.] Gross negligence is the exercise of so slight a degree of care as to exhibit a conscious indifference or 'I don't care' attitude concerning the ultimate consequences of one's conduct. [Citation.]" (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922.) The defendant's state of mind is reviewed under an objective standard: "whether a reasonable person in the defendant's position would have been aware of the risk involved. [Citation.]" (People v. Bennett (1991) 54 Cal.3d 1032, 1036.)
In Sanchez, supra, 24 Cal.4th 983, the California Supreme Court acknowledged "the general tradition" that involuntary manslaughter was considered a lesser included offense of murder, but held otherwise as to the offense of gross vehicular manslaughter while intoxicated. (Id. at p. 989.) In that case, the defendant was convicted of both murder under an implied malice theory, and gross vehicular manslaughter while intoxicated. Sanchez rejected the defendant's argument that he could not be convicted of both crimes. (Id. at p. 987.)
Sanchez held gross vehicular manslaughter while intoxicated was not a lesser included offense of murder. (Sanchez, supra, 24 Cal.4th at pp. 988-989.) "When we compare the elements of murder with the elements of gross vehicular manslaughter while intoxicated, it appears ... that the statutory elements of murder do not include all the elements of the lesser offense. Gross vehicular manslaughter while intoxicated requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication. Specifically, section 191.5 requires proof that the homicide was committed 'in the driving of a vehicle' and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated." (Id. at p. 989.)
"Although it long has been held that manslaughter is a lesser included offense of murder, this tradition has not explicitly included offenses requiring proof of specific elements unique to vehicular manslaughter. Unlike manslaughter generally, vehicular manslaughter while intoxicated requires proof of elements that are not necessary to a murder conviction. The use of a vehicle while intoxicated is not merely a 'circumstance,' but an element of proof when the charge is gross vehicular manslaughter while intoxicated. Gross vehicular manslaughter while intoxicated is not merely a degree of murder, nor is it a crime with a lengthy pedigree as a lesser included offense within the crime of murder." (Id. at p. 991.)
Sanchez further explained the exception to the rule of lesser included offenses:
"Although it generally is true that manslaughter is a lesser included offense of murder, because generally manslaughter simply involves an unlawful killing of a human being without malice, gross vehicular manslaughter while intoxicated - like assault with a deadly weapon - requires proof of additional elements that are not included in the offense of murder or in other forms of nonvehicular manslaughter.... Although we recognize that historically manslaughter in general has been considered a necessarily included offense within murder, that long and settled tradition has not extended to the more recently enacted forms of vehicular manslaughter that require proof of additional elements." (Sanchez, supra, 24 Cal.4th at p. 992, italics in original, fn. omitted.)
As we will explain, Sanchez did not address the continued validity of section 192, subdivision (b), defining involuntary manslaughter, in reaching this holding.
Thus, gross vehicular manslaughter while intoxicated is a lesser related offense and not a lesser included offense of murder. (Sanchez, supra, 24 Cal.4th at pp. 921-922; Ferguson, supra, 194 Cal.App.4th at p. 1082, fn. 3; People v. Batchelor, supra, 229 Cal.App.4th at p. 1116.)
D. Analysis
Defendant was charged with murder in this case. The amended information alleged murder based on the statutory elements of the offense without specific allegations about a vehicular homicide or that defendant was driving while intoxicated.
During pretrial motions, the prosecutor clarified that the People were pursuing a second degree murder conviction based on Watson and implied malice. The defense submitted an instruction for gross vehicular manslaughter while intoxicated as a lesser included offense. The court agreed with the prosecutor that the crime was not a lesser included offense of murder under Sanchez, and defense counsel withdrew the request.
The court properly granted the prosecution's motion not to instruct the jury on gross vehicular manslaughter as a lesser included offense of murder. As in Sanchez, gross vehicular manslaughter is not a lesser included offense of murder under the statutory elements test. Instead, it is a lesser related offense and the court did not have a sua sponte duty to give the instruction. (Ferguson, supra, 194 Cal.App.4th at p. 1082, fn. 3.)
III. Murder and Involuntary Manslaughter
Defendant argues the trial court in this case had a sua sponte duty to instruct the jury on involuntary manslaughter because the California Supreme Court has repeatedly held it is a lesser included offense of murder. Defendant asserts the amended information simply alleged that he committed murder using the statutory definition for the crime, without specifying that the act involved a motor vehicle, so that involuntary manslaughter was a lesser included offense of murder based on the statutory elements test.
Defendant correctly states that he has not forfeited appellate review of this issue, even though defense counsel did not object when the court stated that it would not instruct on any lesser included offenses, since his argument is that the court had a sua sponte duty to give the involuntary manslaughter instruction regardless of defense counsel's motion. (See, e.g., People v. Brothers (2015) 236 Cal.App.4th 24, 33.)
As we will explain, defendant's assertion is refuted by both decisional and statutory authorities.
A. Section 192
"Generally, involuntary manslaughter is a lesser offense included within the offense of murder. [Citation.]" (Gutierrez, supra, 28 Cal.4th at p. 1145, italics added; People v. Abilez (2007) 41 Cal.4th 472, 515 ["Involuntary manslaughter is ordinarily a lesser offense of murder," italics added].)
As explained above, Sanchez identified an exception to "the general tradition" and held that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. (Sanchez, supra, 24 Cal.4th at p. 989.)
Section 192, subdivision (b) states the legislative exception to the "general" rule. The statute defines involuntary manslaughter as an unlawfully killing without malice "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."
As relevant to this case, section 192, subdivision (b) further states:
"This subdivision shall not apply to acts committed in the driving of a vehicle." (Italics added.)
This part of section 192, subdivision (b) has been interpreted to mean that "although involuntary manslaughter is usually a lesser included offense of murder [citations], in the context of drunk driving it is not." (Ferguson, supra, 194 Cal.App.4th at p. 1082, italics added.)
A defendant has a due process right to a jury instruction on a lesser included offense only when the evidence would support a conviction on that lesser offense. (Gutierrez, supra, 28 Cal.4th at p. 1145.) In this case, the trial evidence showed without contradiction that defendant was driving a vehicle when the van crashed into the tree and Starr was killed. As a result, defendant could not be convicted of involuntary manslaughter based on the evidence and section 192, subdivision (b)'s express statement that an involuntary manslaughter conviction was barred in vehicular homicide cases. As a result, the court did not have a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense of murder.
B. Defendant's Arguments About Section 192
Defendant acknowledges the express statutory prohibition in section 192, subdivision (b), but raises several arguments to question the continued validity of that prohibition.
Defendant begins with the Legislature's 1945 amendment to California's involuntary manslaughter statute (now codified in section 192, subdivision (b)), that added the language that excludes a conviction for involuntary manslaughter in a vehicular homicide case. Defendant notes the 1945 the amendment simultaneously created a third type of manslaughter, defined as "vehicular" manslaughter, which is now codified in section 192, subdivision (c). (Watson, supra, 30 Cal.3d at pp. 297-298; Stats. 1945, ch. 1006, §§ 1-2, pp. 1942-1943.)
Defendant asserts the purpose of the 1945 amendment was to ensure that vehicular homicides would be prosecuted under the then-new vehicular manslaughter statute instead of murder, except where the defendant's conduct fell within a felony-murder theory. (See, e.g., People v. Calzada (1970) 13 Cal.App.3d 603, 605-607.)
Defendant further notes that Watson was decided in 1981, and held that a drunk driver could be convicted of second degree murder. Defendant asserts that once Watson permitted murder convictions, the legislative purpose of the 1945 amendment to section 192, subdivision (b), including the prohibition at issue in this case, no longer has any application "to a case like [defendant's], where the prosecutor has chosen to prosecute outside the scope of the vehicular manslaughter statute and instead file a murder charge in a vehicular homicide case."
In further support of this argument, defendant relies on Sanchez, supra, 24 Cal.4th 983, because it cited with approval several cases that held involuntary manslaughter was a lesser included offense of murder.
Defendant "appreciates" the "plain language" of section 192, subdivision (b), but argues that based on Watson, Sanchez and the legislative history of section 192, subdivision (b), the statutory prohibition is no longer valid. Defendant asserts that the court thus has a sua sponte duty to give an instruction on involuntary manslaughter as a lesser included offense of murder even if the murder involved a vehicle.
Defendant's arguments are meritless. As we have explained, Watson addressed implied malice and second degree murder in DUI cases; it did not address section 192, subdivision (b). Sanchez cited prior cases that held manslaughter was a lesser included offense of murder, but also explained that "it generally is true that manslaughter is a lesser included offense of murder." (Sanchez, supra, 24 Cal.4th at p. 992, italics added.) Sanchez unequivocally concluded that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder because it "requires proof of additional elements that are not included in the offense of murder or in other forms of nonvehicular manslaughter." (Ibid., italics in original.) Watson and Sanchez did not undermine the continued validity of the prohibition stated in section 192, subdivision (b).
1. Statutory Construction
Defendant's arguments also ignore the express language of section 192, subdivision (b). "Statutory construction begins with the plain, commonsense meaning of the words in the statute, ' "because it is generally the most reliable indicator of legislative intent and purpose." ' [Citation.]" (People v. Manzo (2012) 53 Cal.4th 880, 885.) "The courts may not expand the Legislature's definition of a crime [citation], nor may they narrow a clear and specific definition." (People v. Farley (2009) 46 Cal.4th 1053, 1119, italics in original.)
Section 192, subdivision (b) "makes the ordinary definition of involuntary manslaughter inapplicable to acts committed in driving a vehicle." (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 262, p. 1086.) Under the plain meaning of this statutory language, which has not been amended, involuntary manslaughter cannot be charged as a matter of law in vehicular homicide cases, and thus is precluded as a lesser included offense of murder.
2. Burroughs
In addition to his claims about Sanchez and Watson, defendant further asserts the California Supreme Court also eliminated the prohibition contained in section 192, subdivision (b), based on language contained in People v. Burroughs (1984) 35 Cal.3d 824 (Burroughs) (overruled on other grounds in People v. Bryant (2013) 56 Cal.4th 959, 967-968, and People v. Blakeley (2000) 23 Cal.4th 82, 89), and cases cited therein.
Burroughs did not involve a vehicular homicide case or address the express prohibition stated in section 192, subdivision (b). Nevertheless, we will review Burroughs to refute defendant's claim that the court has undermined this statute.
In Burroughs, the defendant was a "self-styled 'healer,' " and convinced a gravely ill patient to undergo the defendant's alternative treatments. These treatments included " 'deep' abdominal massages" and led to "a massive hemorrhage" and the victim's death. The defendant was convicted of second degree felony murder on the theory that the killing occurred in the commission of felony practicing medicine without a license. (Burroughs, supra, 35 Cal.3d at pp. 826-828.)
Burroughs reversed the murder conviction and held that practicing medicine without a license could not support a felony-murder conviction because it was not an inherently dangerous felony. (Burroughs, supra, 35 Cal.3d at pp. 829-833.) Burroughs further held that the court should have instructed the jury on involuntary manslaughter. The court stated that on remand, the defendant "was susceptible to a possible conviction of involuntary manslaughter" and the jury should be so instructed, because a killing without malice in the commission of a noninherently dangerous felony would constitute involuntary manslaughter if "committed without due caution and circumspection." (Id. at pp. 834-835.)
In addressing the possibility of an involuntary manslaughter conviction, Burroughs addressed section 192:
"Involuntary manslaughter is described in section 192 as a killing, without malice 'in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' While a killing in the course of commission of a noninherently dangerous felony does not appear to be precisely within one of these descriptions, the court in People v. Morales (1975) 49 Cal.App.3d 134, 144 ..., held that as a matter of statutory construction, the noninherently dangerous felony of grand theft may support a conviction of involuntary manslaughter, if the felony is committed 'without due caution and circumspection.' We agree that the only logically permissible construction of section 192 is that an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection. Thus, if the jury had concluded the activities performed by [defendant] in the course of the commission of the felonious unlicensed practice of medicine proximately caused the death of [the victim], and that these activities were committed 'without due caution and circumspection,' the jury could properly have convicted [defendant] of involuntary manslaughter.
"Indeed, while the descriptions listed in section 192 of the ways in which involuntary manslaughter is committed do not specifically detail circumstances identical to those involved in this case, the only rational interpretation of section 192 is that the Legislature intended felons situated as [defendant] is here be susceptible to conviction for involuntary manslaughter. 'It would be anomalous to hold, although defendant's unlawful act proximately caused the death, that he should bear no criminal responsibility for the homicide.' (People v. Morales, supra, 49 Cal.App.3d at p. 144.) More anomalous still would be a holding that while one who kills in the course of a lawful act without due caution and circumspection is guilty of involuntary manslaughter, one such as [defendant], who allegedly commits a homicide while committing a noninherently dangerous felony, is guilty only, perhaps, of a battery. If [the victim] died from the massages
unlawfully administered by [defendant], defendant certainly ought not benefit from the fact that those massages were felonious, rather than lawful." (Burroughs, supra, 35 Cal.3d at p. 836, italics in original, fns. omitted.)
Immediately after this discussion of involuntary manslaughter relative to the facts of the case, Burroughs turned to the language of section 192, subdivision (b):
" 'The basic definition set forth at the outset of Penal Code section 192 is of controlling significance - "Manslaughter is the unlawful killing of a human being, without malice." ' ([People v. Morales, supra, 49 Cal.App.3d] at p. 145.) The Legislature provided in section 192, [then] subdivision 2, that a killing in the commission of a lawful act which might produce death if committed without due caution and circumspection is involuntary manslaughter.... A fortiori, an unintentional homicide committed in the course of a noninherently dangerous felony (which might, nevertheless, produce death if committed without due caution and circumspection) ought be punishable under section 192 as well." (Burroughs, supra, 35 Cal.3d at p. 836, italics added, fn. omitted.)
In this appeal, defendant cites the italicized sentence above from Burroughs, that the definition of involuntary manslaughter is contained at the "outset" of section 192, subdivision (b). Based on this language, defendant asserts the California Supreme Court effectively ruled "that the prefatory language in section 192 that precedes the specific definitions of the three kinds of manslaughter (voluntary, involuntary and vehicular) controls" over the "limitation on involuntary manslaughter set forth later in subdivision (b)...."
Burroughs did not disapprove or nullify the express prohibition contained in section 192, subdivision (b). Section 192 begins: "Manslaughter is the unlawful killing of a human being without malice. It is of three kinds ...." Subdivision (a) defines voluntary manslaughter, and subdivision (c) defines vehicular manslaughter. Subdivision (b) defines involuntary manslaughter:
"(b) Involuntary - in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and
circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle." (§ 192, subd. (b).)
Burroughs did not address a vehicular homicide case or the prohibition stated in the last sentence of section 192, subdivision (b). Instead, it focused on the specific facts of that case, that the defendant therein could not be guilty of murder, and the jury should be instructed on involuntary manslaughter on remand. Burroughs addressed the "prefatory language" of section 192 - that the basic definition of manslaughter was an "unlawful killing of a human being, without malice" - because that language was pertinent to whether the defendant in that case could be convicted of manslaughter. In doing so, Burroughs did not imply that it was disapproving the rest of subdivision (b), or that the statutory exclusion could be disregarded or ignored.
3. "All-or-nothing choice"
Defendant next asserts his constitutional right to due process was violated because the court's failure to instruct on involuntary manslaughter in this case left the jury with an "all-or-nothing choice" in a homicide prosecution. Defendant argues the court's failure to give the instruction made it more likely that the jury would return a murder conviction even if it was not supported by the evidence.
Defendant's "all or nothing" argument is similar to the California Supreme Court's explanation that a trial court has a sua sponte duty to instruct on lesser included offenses in appropriate circumstances. (People v. Hicks, supra, 4 Cal.5th at p. 210.)
As discussed above, however, a defendant is only entitled to such instructions if there is evidence substantial enough for a jury to convict the defendant of the lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) "Due process requires that the jury be instructed on a lesser included offense only when the evidence warrants such an instruction. [Citation.]" (Gutierrez, supra, 28 Cal.4th at p. 1145, italics in original.) "[I]t has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged." (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.)
In this case, the court did not have a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense of murder because defendant was charged with a vehicular homicide, and section 192, subdivision (b) prevented him from being charged with or convicted of involuntary manslaughter. He therefore had no right to have the jury instructed on involuntary manslaughter. In addition, if the jury had believed defendant's story that Starr wrestled control of the steering wheel away from him, and determined that the prosecution failed to prove implied malice, the result would not have been absurd but an acquittal on the sole charge of murder.
4. Prejudice
Finally, even if section 192 did not exist and we were not bound by Sanchez, any error for failing to instruct on involuntary manslaughter would have been harmless. In a noncapital case, a court's error in failing to sua sponte instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. The defendant must show it is reasonable probable a more favorable result would have been obtained absent the error. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Beltran (2013) 56 Cal.4th 935, 955.)
"At least since 1981, when our Supreme Court [in Watson, supra, 30 Cal.3d 290] affirmed a conviction of second degree murder arising out of a high speed, head-on automobile collision by a drunken driver that left two dead, California has followed the rule in vehicular homicide cases that 'when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied ....' [Citation.]" (People v. Ortiz (2003) 109 Cal.App.4th 104, 109-110.)
It is not reasonably probable that a more favorable result to defendant would have occurred if the jury had been instructed on involuntary manslaughter. Defendant had multiple prior convictions for driving under the influence. He attended court-ordered classes about the dangers and consequences of driving under the influence. As part of his 2008 conviction, he was expressly admonished in his written plea form and by the court when he entered his plea, that he could be charged with murder if he killed someone while driving under the influence. Defendant acknowledged his awareness of these admonitions when he testified at trial in this case.
Despite his numerous prior convictions, defendant continued to drink and drive, including the incidents described by Starr's daughter that occurred just a few months before the fatal collision. On the afternoon of the fatal collision, defendant already smelled of beer when he arrived home. He consumed four beers at the house and directed Starr's young son to pack more beer to take to the pool hall. Defendant testified at trial that Starr drove them to the pool hall, but Starr's daughter testified in rebuttal that defendant was driving the van when they left the house.
Defendant admitted that he drank beer in the van on the drive to the pool hall, drank more beer when he arrived, and also drank at least one "shot" of liquor. When Flores asked if he was okay, defendant said yes.
Defendant asserts that reasonable jurors could have believed his trial testimony, that he drove the van "adequately" until Starr grabbed the wheel, assumed full control of the vehicle, and caused the collision. As explained by the eyewitness and confirmed by the investigating officers, however, defendant's van was traveling 80 miles an hour in the far left lane when it made a sharp right turn, crossed all three lanes, went off the roadway, hit the tree on the right shoulder, and went into a spin. The criminalist testified without contradiction that defendant's blood-alcohol level at the time of the fatal collision was between 0.17 and 0.175 percent.
There was no evidence defendant tried to slow down, break, or swerve back onto the roadway, which undermined his trial claim about a struggle for control over the wheel. Indeed, defendant's other trial claim - that Starr was driving when they left the house - was undermined by the rebuttal evidence that Starr's daughter saw him driving the van when they left the house for the pool hall that night, even though he had already consumed several beers and smelled like alcohol.
Even if the trial court had a sua sponte duty to instruct on involuntary manslaughter, it is not reasonably probable the jury would have found that defendant did not appreciate the risk involved in his actions or act in wanton disregard for human life. (People v. Ortiz, supra, 109 Cal.App.4th at pp. 109-110.)
IV. Section 192 and Equal Protection
Defendant raises an alternative argument that the prohibition contained in section 192, subdivision (b) violates his constitutional right to equal protection. Defendant asserts that a person charged with an implied malice murder using a vehicle receives "unjustifiable disparate treatment" when compared with other, similarly situated defendants who are charged with committing murders that did not involve motor vehicles. Defendant further asserts this alleged disparate treatment results in invidious discrimination, violates his fundamental rights, and cannot survive strict scrutiny review because it involves his personal liberty.
A. Equal Protection and Strict Scrutiny
Defendant asserts his disparate treatment under the statutory definitions of manslaughter must be reviewed under the strict scrutiny standard.
"An analysis of an equal protection claim proceeds as follows: 'We first ask whether the two classes are similarly situated with respect to the purpose of the law in question, but are treated differently. [Citation.] If groups are similarly situated but treated differently, the state must then provide a rational justification for the disparity. [Citation.] However, a law that interferes with a fundamental constitutional right or involves a suspect classification, such as race or national origin, is subject to strict scrutiny requiring a compelling state interest. [Citation.]' [Citation.] Equal protection claims are reviewed de novo. [Citation.]" (Wolfe, supra, 20 Cal.App.5th at pp. 686-687.)
" 'A defendant claiming that state legislation violates equal protection principles must first demonstrate that the laws treat persons similarly situated in an unequal manner.' [Citation.] But not all defendants charged with murder are entitled to a manslaughter instruction as a lesser included offense. A defendant is entitled to an instruction on a lesser included offense only if the record contains substantial evidence of the lesser crime. [Citation.] Thus, in some implied malice murder trials that do not involve a vehicle, the court is not required to instruct the jury on manslaughter as a lesser included offense when there is no substantial evidence to support the lesser charge. [Citations.]" (Wolfe, supra, 20 Cal.App.5th at pp. 687-688, italics added.)
The trial court's sua sponte duty to instruct on lesser included offenses "is based on state constitutional law, not the federal Constitution. [Citation.]" (Wolfe, supra, 20 Cal.App.5th at p. 688.) While a murder conviction "necessarily exposes a defendant to a longer prison term than a manslaughter conviction, this does not trigger a strict scrutiny test within the context of an equal protection claim. [Citations.]" (Id. at pp. 688-689.)
Contrary to defendant's assertions, it is entirely possible that a defendant charged with implied malice murder would not be entitled to receive manslaughter instructions as a lesser included offense, regardless of the instrumentality of the crime, if that instruction is not supported by the evidence. (See, e.g., People v. Dixon (1995) 32 Cal.App.4th 1547, 1550.) As a result, a jury in such a case could be presented with the same type of all-or-nothing choice that defendant asserts constitutes an equal protection violation. Defendant has thus failed to establish disparate treatment of similarly situated persons, the threshold requirement for an equal protection claim. (Wolfe, supra, 20 Cal.App.5th at p. 688.)
B. Rational Basis
In the alternative, defendant asserts his claim of disparate treatment cannot survive review under the rational basis test. In raising this argument, defendant relies on his previous challenges to the continued validity of section 192, subdivision (b) based on the legislative history of the 1945 amendment, and the subsequent decisions in Watson and Sanchez, to argue there is no rational basis to prohibit instructions on involuntary manslaughter as a lesser included offense in a vehicular homicide case.
"Where ... a statute involves neither a suspect class nor a fundamental right, it need only meet minimum equal protection standards, and survive 'rational basis review.' [Citation.] A criminal defendant has no vested interest ' "in a specific term of imprisonment or in the designation a particular crime receives." ' [Citation.] It is both the prerogative and the duty of the Legislature to define degrees of culpability and punishment, and to distinguish between crimes in this regard. [Citation.] Courts routinely decline to intrude upon the 'broad discretion' such policy judgments entail. [Citation.] Equal protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law. [Citation.]" (People v. Turnage (2012) 55 Cal.4th 62, 74.)
"Under these principles, equal protection of the law is denied only where there is no 'rational relationship between the disparity of treatment and some legitimate governmental purpose.' [Citation.] In other words, the legislation survives constitutional scrutiny as long as there is ' "any reasonably conceivable state of facts that could provide a rational basis for the classification." ' [Citation.] This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in ' "rational speculation" ' as to the justifications for the legislative choice. [Citation.] It is immaterial for rational basis review 'whether or not' any such speculation has 'a foundation in the record.' [Citations.]" (People v. Turnage, supra, 55 Cal.4th at pp. 74-75.)
Defendant has failed to show that he was deprived of equal protection of the law by section 192, subdivision (b). Even assuming that defendant is similarly situated to a person charged with a homicide that was not "committed in the driving of a vehicle" (§ 192, subd. (b)), he has not met his burden of negating a rational basis for the statutory exclusion. The Legislature has consistently attempted to control the serious and often deadly damage caused by drivers impaired by alcohol or drugs. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 261-262, 273, fn. 21 [laws restricting driving while under the influence of alcohol or drugs further valid legislative purpose, and do not violate equal protection]; People v. Davalos (1987) 192 Cal.App.3d Supp. 10, 14 [protecting members of the public from those driving while impaired is valid legislative goal].)
The Legislature's statutory scheme of excluding involuntary manslaughter in vehicular homicide cases is rationally related to the legitimate government purpose to "appropriately punish - and perhaps discourage - people from engaging in the highly dangerous conduct of driving under the influence. [Citation.]" (Wolfe, supra, 20 Cal.App.5th at p. 690.) " 'Indeed, a drunk driver is not at all unlike a "bomb," and a mobile one at that.' " (People v. Wells (2006) 38 Cal.4th 1078, 1086.)
Accordingly, there is a rational basis for permitting involuntary manslaughter to be raised as a lesser included offense to murder if death occurs as a result of something other than the result of driving a motor vehicle in an unlawful manner.
V. Admission of Prior Uncharged Incidents
Defendant next argues the court abused its discretion when it granted the prosecution's motion to introduce the testimony of J.S., Starr's daughter, about the two prior uncharged incidents that occurred a few months before the fatal collision, where defendant was driving while appearing to be under the influence. Defendant asserts the evidence was inadmissible and prejudicial under Evidence Code sections 1101 and 352 because he was not arrested or charged with any offenses, and there were no other witnesses to the incidents except for Starr's daughter.
A. Background
The People's pretrial motion sought to introduce evidence of defendant's prior DUI convictions. The court granted the motion.
The People also moved to introduce the testimony of J.S. about two prior uncharged incidents in 2013, where defendant was driving while drunk with Starr and J.S., he almost hit a power pole on one occasion, and he ran into Starr as she walked in front of the car on another occasion.
The People's motion asserted the two prior uncharged incidents were relevant and admissible pursuant to Evidence Code section 1101, subdivision (b) to prove defendant's knowledge as required for implied malice/second degree murder - that defendant "had firsthand knowledge of the dangerousness of driving under the influence when he was unable to drive properly and safely down the road...."
At the pretrial hearing, the prosecutor gave an offer of proof for J.S.'s proposed testimony, which was consistent with J.S.'s subsequent trial testimony about the two uncharged incidents, as set forth above. Both incidents occurred after defendant, Starr and J.S. were at the pool hall, and defendant had been drinking.
In his offer of proof, the prosecutor said the first incident was when defendant almost hit the power pole, and the second incident was when defendant hit Starr with his car. At trial, however, J.S. testified to a different sequence - that the first incident was when defendant hit Starr with the car, and the second incident was when he almost hit the power pole.
As to the incident where defendant hit Starr with his car, the prosecutor stated that defendant had been drinking at the pool hall, he was rude and loud, and he argued with Starr. Defendant was going to drive Starr and J.S. home, but Starr decided to walk and J.S. stayed with her. Defendant kept yelling at them to get back into the car. At some point, defendant hit Starr from behind with the car, with enough force that Starr was pushed onto the hood. Defendant got out of the car and apologized. They argued, and then Starr and J.S. got in the car. Starr suffered bruises. J.S. believed defendant accidentally hit Starr.
Defense counsel objected to J.S.'s proposed testimony about uncharged incidents because it was irrelevant and prejudicial, no one could corroborate J.S.'s account, and incidents were not reported to the police at the time.
The prosecutor replied that the two prior incidents occurred close in time to the fatal collision, both incidents occurred when defendant drove back from the pool hall when he was drunk, and Starr was involved in the incidents. The prosecutor argued that the incident where defendant accidentally hit Starr with the car was particularly probative of defendant's subjective knowledge that he could not drive his vehicle safely while under the influence, but he did so again a few months later and the fatal crash occurred.
The court addressed the incident where defendant hit Starr with the car, and whether it happened because defendant and Starr argued and not because he was too drunk to drive; or it was the result of his intoxication and he could not drive safely. The prosecutor replied that J.S. would testify there were two reasons that Starr got out of the car: defendant and Starr were arguing, and Starr thought he was too drunk to drive.
B. The Court's Ruling
The court held the prosecution could introduce J.S.'s testimony about the two prior uncharged incidents. The court addressed the incident where defendant hit Starr with his car:
"I have considered that ... that circumstances may have ... been done as a result of an argument and not necessarily driving under the influence. However, I believe that goes to the weight of the evidence and not the admissibility and clearly it could be argued that there's insufficient evidence to establish that conduct, or if the conduct is established, that it related to being under the influence as opposed to being related to something else.
"Under Evidence Code Section 352, again, I made an analysis that this could be prejudicial but I don't find it to be unduly prejudicial. I find it, again, to be relevant, again, as it may relate to proving the knowledge element of implied malice in this case, specifically, the danger to human life of driving while under the influence and, therefore, the Court finds that this is relevant and admissible. So as to each of the items which the People have sought to be admissible except as I've otherwise already ruled, I now find it to be relevant and admissible in this case."
J.S. testified about these two incidents, as set forth above.
C. Evidence of Prior Acts
Evidence that a defendant has committed crimes other than those currently charged is not admissible to show bad character or predisposition to criminality. (Evid. Code, § 1101, subd. (a).)
However, such evidence may be admitted to prove some material fact at issue, such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, and/or absence of mistake or accident. (Evid. Code, § 1101, subds. (a) & (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Gray (2005) 37 Cal.4th 168, 202.) The trial court's determination of admissibility under Evidence Code section 1101, subdivision (b) is reviewed for an abuse of discretion. (People v. Gray, supra, at p. 202.)
Even if evidence is admissible under Evidence Code section 1101, subdivision (b), the court must still determine under Evidence Code section 352 whether the evidence has substantial probative value that is not largely outweighed by "the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.)
"A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. [Citation.] 'Undue prejudice' refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' " ' [Citations.]" (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
We review a trial court's decision under Evidence Code section 352 for abuse of discretion. (People v. Gray, supra, 37 Cal.4th at p. 204.)
D. Implied Malice
As explained above, in a prosecution for second degree murder based on Watson, the prosecution must prove the defendant acted with implied malice. (Watson, supra, 30 Cal.3d at p. 300.) A finding of implied malice is based on the determination "that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (Id. at pp. 296-297, italic in original.) "[L]ike all other elements of a crime, implied malice may be proven by circumstantial evidence. [Citation.]" (People v. Superior Court (Costa), supra, 183 Cal.App.4th at p. 697.)
"[S]ince ... Watson, supra, 30 Cal.3d 290, more than half a dozen published opinions of the Court of Appeal have affirmed convictions of second degree vehicular murder. In each of these cases, the trial court's admission of uncharged misconduct evidence to show the requisite mental state supporting a finding of implied malice was upheld on appeal. [¶] The bulk of these cases involved the use of alcohol or other intoxicants in both the uncharged misconduct and the prosecution in which it was sought to be admitted. The resulting case law makes it clear, however, that the contours of the 'knowledge' exception to the bar imposed by [Evidence Code] section 1101(a) are not so restricted that the evidence at issue here was admitted erroneously by the trial court. In short, courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway - whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator - sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum." (People v. Ortiz, supra, 109 Cal.App.4th at pp. 112-113.)
E. Analysis
The court did not abuse its discretion when it admitted J.S.'s testimony about defendant's prior uncharged driving incidents. Both prior incidents were highly relevant and probative to show defendant's subjective awareness of the life-threatening risks of driving after consuming alcohol, in order to prove defendant's knowledge for the implied malice element of second degree murder.
The evidence about the prior incidents was based on J.S.'s eyewitness testimony, her presence at the pool hall, her description of defendant's beer consumption on those occasions, that he appeared under the influence, his insistence that he could drive even though Starr insisted that he was too drunk do so, and J.S.'s description of his inability to drive safely.
Both prior incidents occurred after defendant's convictions in 1990, 1996, and 2008, for driving under the influence; his attendance at the court-ordered DUI classes; and the court's repeated admonishments at his 2008 DUI conviction, that he could be charged with murder if someone was killed as a result of his drunk driving. Despite these warnings, defendant still insisted he could safely drive home from the pool hall on those two occasions, even though he showed signs of intoxication and Starr did not want to get in the car with him, and he nearly hit a pole during one trip and actually hit Starr in the other trip. The fatal collision occurred shortly after these incidents.
Such evidence was thus relevant and probative to establish his subjective knowledge as an element of second degree murder. While there was no physical evidence to establish defendant's blood-alcohol levels or that he was legally under the influence during the two prior incidents, J.S.'s testimony was still relevant and probative to establish defendant's willingness to drink large amounts of alcohol, insisted that he could drive, and his subjective knowledge about the perils of driving after drinking alcohol.
Additionally, the trial court properly weighed the evidence's probative value against any prejudice and concluded it was not unduly prejudicial because the nature of the evidence would not inflame the jury against defendant. The court acknowledged that the incident where defendant hit Starr with his car could be construed as either accidental or intentional because of their argument, and decided to allow the jury to make that determination. J.S.'s testimony about the two prior incidents was no more inflammatory than the evidence about the vehicular homicide and the severity of Starr's fatal injuries. (People v. Ortiz, supra, 109 Cal.App.4th at p. 118.)
Finally, the jury was properly instructed with CALCRIM No. 374 on the limited admissibility of the prior uncharged incidents:
"The People presented evidence that the defendant committed other offenses, specifically prior convictions for driving under the influence of alcohol that were not charged in this case. The People also presented evidence of other behavior by the defendant that was not charged in this case, specifically the testimony of [J.S.] that the defendant drove recklessly or under the influence of alcohol.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses and/or acts.
"Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses and/or acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant knew that driving under the influence of alcohol was dangerous to human life when he allegedly acted in this case.
"In evaluating this evidence, ... consider the similarity or lack of similarity between the uncharged offenses and acts and the current charged offense.
"Do not consider this evidence for any other purpose.
"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offenses and/or acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crime of second-degree murder. The People must still prove the charged crime of second degree murder beyond a reasonable doubt." (Italics added.)
The court's instruction reduced "the potential for any untoward effects of the evidence." (People v. Ortiz, supra, 109 Cal.App.4th at p. 118.)
VI. Cumulative Error
Having rejected defendant's appellate arguments, we similarly reject his claim of cumulative error.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
FRANSON, J.