Opinion
G059508
03-22-2022
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN AARON SAMOFF, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 14WF3770, Sheila Hanson, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Jonathan Aaron Samoff was convicted of second degree murder. The prosecutor's theory was he acted with conscious disregard for human life when he drove a speeding car while intoxicated, causing an accident which resulted in the death of his passenger.
Samoff appeals, arguing the prosecutor abused his discretion by refusing to agree that the jury could be instructed on the lesser charge of gross vehicular manslaughter. He also contends the trial court erred by refusing to instruct on the lesser charge because it qualifies as a lesser included offense of murder under an "expanded" accusatory pleading test. We reject both claims and affirm.
As Samoff acknowledges, our Supreme Court determined in People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez) that gross vehicular manslaughter is not a lesser included offense (LIO) of murder. And while he argues that Sanchez might permit a different conclusion to be reached under what he refers to as the "expanded" accusatory pleading test, the pleading in this case does not allege facts demonstrating that gross vehicular manslaughter would necessarily be included in the murder charge. To the extent Samoff suggests the evidence adduced at the preliminary hearing should be viewed as the real "accusatory pleading" for purposes of this analysis, we reject that argument. Consequently, applying the accusatory pleading test would not alter either our analysis or conclusion.
Because gross vehicular manslaughter is not a lesser included offense of the charged murder, the separation of powers doctrine precluded the trial court from instructing on it absent the prosecutor's consent because it is the prosecutor, as the representative of the executive branch of government, who has the charging discretion. While a prosecutor can abuse that discretion by exercising it for an improper reason, there is no evidence in this record that was the case here.
Finally, Samoff argues that in light of the prosecutor's use of the word "reckless" during final argument, the court erred by failing to properly instruct the jury on the difference between "reckless disregard" and "conscious disregard," which he characterizes as the respective "mental states" required for the crimes of gross vehicular manslaughter and implied malice murder, which arises out of an incident involving driving while intoxicated.
In making that argument, Samoff conflates the objective assessment of negligence, which is a necessary element of vehicular manslaughter, with the subjective mental state of implied malice, which is a necessary element of murder. The instruction in this case required the jury to find that Samoff acted with "conscious disregard for life," which a reasonable juror would understand to be a subjective, rather than objective, determination. We find no error in the instruction.
FACTS
On March 7, 2014, Samoff was asked to leave the sober living home where he resided. He and another resident, Isaias Tang, agreed to help a third resident, who had also been asked to leave, move his things out of the home. Samoff, accompanied by Tang, drove away in the third resident's blue Camry at about 5:00 p.m. At some point in the evening, Samoff and Tang parted ways with the other former resident, but they retained possession of his Camry.
At about 10:15 p.m., Samoff and Tang visited Tang's gym. An employee of the gym could smell marijuana and alcohol on both men, and he believed them to be under the influence of both substances. The two men were at the gym for less than five minutes; as they left, they said they were "going to go to another bar."
Around 2:00 a.m., Tang showed up at his cousin's home; she let him in and talked with him for five to ten minutes. She invited him to stay because she believed he was intoxicated, but he declined and left. He returned a few minutes later with Samoff, who told Tang's cousin and aunt that he would get Tang home. Samoff did not appear to be intoxicated to Tang's cousin.
Around 2:54 a.m., a resident of a mobile home park heard a loud crash. He looked over a six-foot wall and saw what appeared to be an automobile accident. The resident saw one person next to the car pull someone out of the car, and asked "Are you guys okay?" The person responded by yelling, "Call 911." The resident ran back into his home and called 911.
When the first police officer arrived on the scene, he found a single vehicle with smashed windows and deployed airbags, facing north in the southbound lanes. The car appeared to have collided with a street light and a cinder block retaining wall. Tang was dead, and both he and the car were covered in blood. Samoff was not present.
An officer specializing in accident investigation and collision reconstruction opined the car was traveling more than 72 miles per hour in a 45-mile-per-hour zone prior to the accident; as it started to turn, the vehicle spun out and hit the retaining wall that separated the street from the mobile home park. The passenger side of the car hit the wall. The officer testified the primary collision factors were the car's unsafe turning movement and its speed.
Samoff arrived at the home of his great aunt between 3:00 a.m. and 4:00 a.m. An officer testified it was about a 25-to-30-minute walk from the accident site to the great aunt's home. Samoff had an injury over his left eye; his great aunt drove him to the hospital.
Samoff checked into the hospital emergency room at 4:36 a.m., complaining of a head injury and abrasions on the side of his face. He denied any drug or alcohol use, but blood and urine samples were taken and tested. Samoff's blood alcohol level was determined to be .109 and his urine test result was presumptively positive for cannabinoids. According to expert testimony, Samoff's blood test suggested that his blood alcohol level would have ranged from .13 to .14 at the time of the accident, which is equivalent to seven to nine standard drinks of alcohol.
Samoff was discharged from the hospital about 10:16 a.m. His aunt then drove him back to her house; she went into the bathroom, and when she came out, Samoff was gone.
Later that day, police officers tried to contact Samoff at this great aunt's home, without success. They made contact with him three days later when they returned to the house. When the officers interviewed Samoff about the accident, he claimed not to remember what happened or even the name of the friend who was killed. He said it was "like a blackout."
Samoff was charged with one count of murder (Pen. Code, § 187, subd. (a)). He was initially tried in June 2019; the jury was unable to reach a unanimous verdict and a mistrial was declared.
The case was retried in November 2019. Samoff testified in his own defense. He acknowledged that in 2009, when he had just turned 21, he was cited for driving under the influence. As a consequence of that incident, Samoff was required to take alcohol-related classes and go to meetings. However, his efforts to "manag[e] on [his] own" were not effective, and he began to "slip back." In 2012, his family helped him get "into recovery," which included attending a 90-day residential treatment program. Following his completion of that program, he moved to a sober living facility for a few months.
Samoff relapsed again after leaving the sober living home, and he resumed drinking. In 2013, he returned to sober living, where he made friends with both Tang and the owner of the Camry he was driving when Tang was killed.
Samoff testified he did not have a complete memory of the events on the night Tang was killed. He did not recall what he and Tang did before the accident and said his memory of the accident was "in pieces." Samoff recalled "driving down the street. It was quiet. Losing control. Hitting something hard. Calling out to [Tang] to see if he was all right. Pulling him out. Calling his name. Looking around. Seeing no one. Asking for help." He denied any recollection of leaving the scene.
Samoff had only a vague memory of being at his great aunt's house; he recalled being in the bathroom where he took some painkillers from the medicine cabinet. He testified he was overwhelmed by his emotions and went into the backyard; he found a bottle in the recyclables, where he used to keep his discarded alcohol, and he drank the contents of the bottle. Samoff did not remember how much he consumed.
Despite his minimal recollection of the night of the accident, Samoff testified he was sober while driving the car. He said he knew he was because "it was my responsibility to my friend when we were out that I would be the one driving. It wasn't my car. I was borrowing somebody else's, and they gave me the keys trusting and knowing that I would be safe. To make sure that we were all safe."
The defense argued to the jury that, while the evidence demonstrated Samoff was speeding and made an unsafe turn at the time of the accident, there was no evidence he was under the influence of alcohol or another substance at the time of the crash. Counsel argued Samoff's blood alcohol reading at the hospital was attributable to the alcohol he testified he drank in his great aunt's backyard after the accident before he went to the hospital. Samoff conceded that before the fatal crash, he was aware of the dangers of driving under the influence, including the fact that he could cause an accident and kill someone.
Samoff conceded that Tang's blood alcohol level was over .20 when he was tested after the crash, and Tang also had the active ingredient in marijuana in his system. Samoff also acknowledged the two were together all night.
After both sides rested their cases, the court considered jury instructions, including Samoff's request for the jury to be instructed on gross vehicular manslaughter as a lesser included offense of murder. The court denied that request, concluding that under Sanchez, supra, 25 Cal.4th 983, gross vehicular manslaughter did not qualify as a lesser included offense to murder.
The court then inquired of the prosecutor whether he objected to giving the gross vehicular manslaughter instruction as a lesser related crime. The prosecutor did object, and on that basis, the court concluded it was not permitted to instruct the jury on gross vehicular manslaughter.
The jury found Samoff guilty of second degree murder. He was sentenced to a term of 15 years to life in prison.
DISCUSSION
Samoff argues his conviction must be reversed for three reasons, all of which arise out of the same issue. Essentially, he contends it is fundamentally unfair that, since his actions were arguably consistent with both second degree murder and the lesser crime of gross vehicular manslaughter, he was not also charged with that lesser crime. He contends that "prosecutors are deliberately choosing to place juries in an all or nothing situation, presumably hoping to tip the scale towards an implied malice murder conviction in cases where a jury might otherwise convict the defendant only of gross vehicular manslaughter if given the option." Samoff suggests there are three alternative justifications for concluding his conviction must be reversed based on the fact the jury was not instructed on, or at the least informed about, the alternative crime of gross vehicular manslaughter.
1. Lesser Included Offense
Samoff argues the trial court committed reversible error when it failed to instruct the jury on gross vehicular manslaughter as a lesser included offense of a second degree murder charge that arises out of intoxicated driving.
In making this argument, Samoff concedes that our Supreme Court has ruled in Sanchez that gross vehicular manslaughter is not a lesser included offense of second degree murder; he states that to the extent his argument is foreclosed by Sanchez, he advances it to preserve the issue for a possible petition for review. We are bound by Sanchez (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and will therefore not address Samoff s contention that case was decided incorrectly.
Samoff also argues that the crime of gross vehicular manslaughter qualifies as an LIO of murder in this case, under the expanded version of the accusatory pleading test used in People v. Ortega (2015) 240 Cal.App.4th 956, 970 (Ortega). In Ortega, which considered the relationship between a charge of sexual penetration by force, and the uncharged crime of sexual battery (id. at p. 960), the court concluded the "accusatory pleading" must be construed as including the facts relied upon to support the charge at the preliminary hearing. When the court did that, the "accusatory pleading" alleged that the defendant had accomplished the charged sexual penetration with his fingers only, which would mean that a lesser charge of sexual battery was necessarily included in the charged count. (Id. at p. 966-967.)
The Ortega court acknowledged that in People v. Lohbauer (1981) 29 Cal.3d 364 (Lohbauer), the Supreme Court came to the opposite conclusion about relying on preliminary hearing evidence to establish what charges the defendant had "notice" of, but concluded the case was distinguishable because the charged crime in Lohbauer-burglary-had been a specific intent crime, and the crime argued by the Attorney General to be the "lesser included" based on the evidence offered at the preliminary hearing-unlawful entry-was a general intent crime.
As the Ortega court explained, the Supreme Court's concern in Lohbauer was that "'where the actor's state of mind is an essential element of an offense, as where it is charged that the entry is "with the intent to commit theft," notice of "conduct" alone cannot be said fairly to forewarn a defendant of other specific crimes which may be proven against him.'" (Ortega, supra, 240 Cal.App.4th at p. 971, quoting Lohbauer, supra, 29 Cal.3d at p. 370.) By contrast to Lohbauer, the two crimes at issue in Ortega had the same intent element, i.e., "that the act be done with a sexual intent." (Ortega, supra, 240 Cal.App.4th at p. 971.)
But the very point the Ortega court relied on to distinguish itself from Lohbauer also distinguishes this case from Ortega; in this case, like Lohbauer, the charged crime of murder included a specific state of mind element, and thus notice of the conduct alone would not have fairly warned Samoff of other crimes with different intent requirements that might also be proven. Consequently, Ortega's analysis does not apply here. In any event, we are bound by Lohbauer.
2. Prosecutorial Abuse of Discretion
Samoff also contends we should conclude the prosecutor abused his discretion by refusing to agree that the jury should be instructed on the lesser related charge of gross vehicular manslaughter.
Samoff begins his analysis of this issue by acknowledging that "[i]n the ordinary case, 'so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.'" (United States v. Armstrong (1996) 517 U.S. 456, 464.) He then argues the prosecutor can nonetheless abuse his discretion by exercising it for an improper purpose.
Specifically, Samoff argues, "[prosecutorial discretion has been held to be curtailed by the constitution in primarily two areas. The first is where charging discretion is exercised based on an improper discriminatory basis such as race or gender, thereby violating the guarantee to equal protection. (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831-832.) The second is where the prosecutor engages in vindictive prosecution, for instance charging a greater crime on retrial after a successful appeal. (Short v. Superior Court [(2019)] 42 Cal.App.5th [905, ] 915.)"
In both of those situations, the impropriety arises out of the prosecutor's exercise of charging discretion for an improper purpose. In this case, there is no assertion-and no evidence-of any such impropriety. The prosecutor elected to charge Samoff with murder, a charge which he apparently believed was supported by the evidence. At the same time, the prosecutor elected not to charge Samoff with any lesser offense like vehicular manslaughter. There is nothing in this record to suggest this was an improper exercise of the prosecutor's charging discretion.
In this regard, it is worth noting that Samoff makes no assertion that the evidence at trial was insufficient to support his conviction on the murder charge.
In arguing that allowing a prosecutor to create an "all-or-nothing" choice between a conviction on a grave offense or a complete acquittal deprives defendant of a fair trial, Samoff relies heavily on Beck v. Alabama (1980) 447 U.S. 625, 627. Samoff fails to acknowledge that Beck involves the failure to charge a lesser included crime, not a lesser related one. Since gross vehicular manslaughter is not a lesser included crime in this case, Beck is inapposite.
It is well settled that "there is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions." (People v. Rundle (2008) 43 Cal.4th 76, 148, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People v. Smith (2013) 57 Cal.4th 232, 244 ["The prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense"].) Because it is well settled that the prosecutor has discretion to decide what charges to file, we reject Samoff s assertion that the prosecutor abused his discretion here.
3. Instructional Error
The jury in this case was instructed with CALCRIM No. 520, defining the elements of murder, as follows: "The defendant is charged with murder in violation of Penal Code section 187. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought. [¶] . . . [¶] The defendant had implied malice if: [¶] 1. He intentionally committed the act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. [¶] An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] If you find the defendant guilty of murder, it is murder of the second degree." (Some italics added.)
Samoff contends that in light of the prosecutor's use of the word "reckless" during final argument, the court erred by not instructing the jury sua sponte on the distinction between a conscious disregard for human life-the standard set forth in the instruction-and a reckless disregard for human life. He explains that "[s]ua sponte instruction is required if failure to instruct on a particular aspect of a law would allow the triers of fact to indulge in unguided speculation about what constitutes sufficient criminal conduct under the statute."
Samoff contends the instruction given was erroneous because it did not educate jurors on the nuances between the differing levels of culpability required for vehicular manslaughter, gross vehicular manslaughter, and second degree murder: "the court has a duty to explain legal thresholds that must be met to establish criminal liability where those thresholds would not be obvious to a laym[a]n." He further contends "[t]he mental state necessary to establish implied malice in intoxicated homicide cases involves this type of nuanced law."
We must disagree. While the various types of vehicular manslaughter are based on a determination the defendant acted with some degree of negligence-an objective standard that evaluates conduct-the crime of murder requires a finding that the defendant acted with a specific mental state: malice. It is that subjective mental state, which distinguishes the two crimes. (People v. Watson (1981) 30 Cal.3d 290, 296.)
This distinction is evidenced by CALCRIM No. 590, defining criminal gross negligence, which requires a finding that "[a] reasonable person" would have known that acting as the defendant did would create a high risk of death or great bodily injury, but not that the defendant himself did know that.
CALCRIM No. 520 states the crime of murder requires a finding that the defendant himself "knew" that his act was dangerous to human life, and that he acted with a "conscious disregard" for that danger. Our Supreme Court has concluded that this is '"straightforward language"' that would be understood by a reasonable juror. (People v. Knoller (2007) 41 Cal.4th 139, 152, citing Watson, supra, 30 Cal.3d. at p. 300; see also People v. Dellinger (1989) 49 Cal.3d 1212.)
Samoff also claims that CALCRIM No. 520 is inherently confusing because it "both tells the jury that it must find the defendant 'deliberately acted with conscious disregard for human life' and then in the next paragraph says' [Malice aforethought] does not require deliberation or the passage of any particular period of time."' The words are similar, yes. But we do not assume a reasonable juror does not understand the difference between acting "deliberately" and engaging in "deliberation" about a decision. In any event, Samoff makes no argument about why the distinction between those two words would create confusion in this implied malice case.
As we have already explained, a second degree murder charge which arises out of intoxicated driving is not an aggravated form of gross vehicular manslaughter. It is a distinct crime with distinct elements. To be guilty of second degree murder, a defendant must commit an act, "[t]he natural and probable consequences of [which] were dangerous to human life." (CALCRIM No. 520.)
In any event, we do not believe the prosecutor made the argument Samoff suggests was made. The prosecutor argued that "[t]he natural and probable consequences of driving under the influence of alcohol and marijuana, and at a speed greater than 70 in a 45 are dangerous to human life." (Italics added.) He then reminded the jury that he "asked [Samoff], 'Do you think drugs, alcohol, and speed could result in anything?' He said, 'Yes.' He said, 'a crash.' I asked him, 'What could happen in a crash?' 'Someone could die.'"
When we focus on the argument made by the prosecutor, it is clear he was relying on more than Samoff s decision to drive while intoxicated despite knowing such conduct was dangerous. Having reviewed the prosecutor's entire closing argument, we reject Samoff s assertion that the argument itself may have created confusion or caused the jury to speculate about the elements of CALCRIM No. 520. There is no basis in this record to conclude the prosecutor's arguments misled the jury as to the law. While it is true the prosecutor used the word "reckless" in passing, he otherwise made it clear that the murder charge required a finding that Samoff was personally subjectively aware of the danger he created, and he chose to ignore it. The jury was specifically instructed by the court to apply the law provided by the court, and to disregard anything inconsistent said by the attorneys: "You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
For the foregoing reasons, we find no error in the instructions given to the jury.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J. ZELON, J. [*]
[*] Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.