Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 061382, Anita H. Dymant, Judge.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Moses Vargas appeals from the judgment entered after a jury convicted him of three counts of second degree murder resulting from a car crash after he evaded pursuing police at high speeds while driving under the influence of phencyclidine (PCP). (Pen. Code, §§ 187, subd. (a), 189; all further undesignated code section references are to the Penal Code). Vargas contends that the trial court erred, and violated his constitutional rights, by refusing to instruct the jury on the version of section 22 that was current at the time of the alleged crime, which would have allowed Vargas to present evidence of voluntary intoxication that prevented him from forming the mental state required for second degree murder. The Attorney General concedes, and we agree, that the trial court erred prejudicially and that Vargas’ conviction must be reversed on this point. We decline to consider two other issues the parties have briefed.
BACKGROUND
Early in the morning on July 10, 1992, Vargas was driving a car through downtown Los Angeles with his friend, Oscar Garcia, in the passenger seat. Both men were under the influence of PCP. At approximately 2:00 a.m., a police officer saw Vargas turn right at a stop sign without stopping, then accelerate rapidly. The officer also saw that Vargas’ car had a broken rear window. The officer followed Vargas, who continued to drive erratically. At a stoplight, the officer turned on his lights and siren to pull Vargas over, but Vargas instead sped away. The officer pursued and called other police units regarding a possible stolen vehicle. Vargas ran several red lights while speeding at 55 or 65 miles per hour in a 35 mile per hour zone. The officer fell back and lost sight of Vargas but broadcast his location to other police units. A second officer saw Vargas and commenced pursuit with lights and siren on. Vargas entered the northbound Golden State freeway and reached speeds of approximately 90 miles per hour, changing lanes and passing on the right shoulder to get around slower traffic, before exiting at Colorado Street in Glendale. Vargas ran several more red lights before colliding with another car carrying three people, killing the driver and one passenger instantly and leaving another passenger severely injured. Garcia also died in the crash.
Vargas was taken to a local hospital, where a doctor took a blood sample showing that his blood contained 78 nanograms of PCP per milliliter. Later, at the jail ward of a different hospital, Vargas told a different doctor that he had used PCP within an hour before the accident.
On October 1, 1992, the Los Angeles County District Attorney filed an information charging Vargas with three counts of murder (§ 187, subd. (a); counts 1-3), one count of unlawfully taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a); count 4), and two counts of evading a police officer thereby causing death and injury (Veh. Code, § 2800.3; counts 5-6). On June 23, 1993, a jury found Vargas guilty as charged and found that the murders were in the second degree. On August 31, 1993, the trial court sentenced Vargas to an indeterminate prison term of 30 years to life. Vargas timely appealed, this court affirmed (People v. Vargas (June 29, 1995, B079116) [nonpub. opn.]), and the California Supreme Court denied Vargas’ petition for review (Sept. 28, 1995, S048127).
In 2005, Vargas filed a petition for writ of habeas corpus contesting his three second degree murder convictions. The Los Angeles County Superior Court granted his petition on January 13, 2006. Retrial of the three murder charges began on February 27, 2007.
At the retrial, the prosecution presented testimony from various percipient police officers and the second of the two attending physicians regarding the facts set forth above. Probation officers testified regarding Vargas’ record of drug use, including one who interviewed Vargas for a pre-plea report in October 1992 and asked him about his history of drug use, to which Vargas replied that he had used PCP since he was 16 and that the fatal crash happened because of PCP. Garcia’s longtime girlfriend also testified about Vargas and Garcia periodically using PCP together over the years before the accident and stated that a week or two before the accident, she had warned Vargas that she feared that they would get hurt or arrested or would hurt other people. In his defense, Vargas testified that he first started using PCP at the age of 14 or 15 and was first arrested for it in 1986, although he suffered no consequences from the arrest. In 1989, when Vargas was 17, as a result of a charge of driving under the influence of PCP, he was placed on probation and was ordered to attend a substance abuse program and to submit to urine testing. He never attended the substance abuse program and tested positive for PCP in November of 1989, but the probation officer only admonished him for the violation, and the court terminated probation when Vargas turned 18. Vargas denied that Garcia’s girlfriend had warned him about the risks of driving under the influence of PCP, and he claimed that before the July 10, 1992 accident, he did not realize the dangerousness of driving while using PCP because he had experienced no adverse consequences until then. Vargas stated that he did not remember what led to the chase or the accident and remembered only parts of what occurred. He admitted that he smoked PCP at some point between 6:00 p.m. and midnight on July 9, 1992. A defense witness who saw the crash said that he thought he saw Vargas swerve to try to avoid hitting the other car.
During the retrial, the prosecution pursued second degree murder convictions based solely on implied malice theories that either (1) Vargas drove under the influence of PCP with a conscious disregard for the safety of others, or (2) he drove recklessly with a conscious disregard for the safety of others. Vargas sought an instruction, under the pre-1995 version of section 22, on voluntary intoxication with regard to implied malice. The prosecutor opposed the instruction, and the court refused to give it, concluding, on the basis of People v. Martin (2000) 78 Cal.App.4th 1107, that “voluntary intoxication simply is not an appropriate instruction where there is an implied malice theory.” Vargas also requested an instruction on gross vehicular manslaughter while intoxicated as described in section 191.5, which the prosecutor opposed and the court denied. Alternately, he sought to argue to the jury that he was guilty of gross vehicular manslaughter while intoxicated, but not of murder, but the court refused to let him discuss the crime and elements of gross vehicular manslaughter while intoxicated during closing arguments. During deliberations, the jury asked, “‘If a person’s judgment is clouded by the effects of [PCP], is that a legal defense for not being conscious of danger to human life?’” The court recognized that the question involved implied malice and answered, “‘Voluntary intoxication is not a legal defense to the element of implied malice required for second degree murder.’” Vargas’ counsel objected and again sought a voluntary intoxication instruction.
Shortly after receiving the court’s answer to their question, on March 9, 2007, the retrial jury convicted Vargas of three counts of second degree murder. On June 5, 2007, the court again sentenced Vargas to an indeterminate prison term of 30 years to life. Vargas timely appealed.
DISCUSSION
I. Involuntary Intoxication Instruction
Vargas contends that the retrial court violated his constitutional rights to due process and to present a defense, as well as the constitutional prohibition against ex post facto laws, by refusing to instruct the jury on whether his voluntary intoxication with PCP prevented him from forming the specific intent necessary for implied malice second degree murder. The Attorney General concedes that the trial court erred prejudicially by refusing the requested instruction, and we agree.
On July 10, 1992, the date of the events, section 22 concerning voluntary intoxication provided, “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged. [¶] (c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.” (Stats. 1982, ch. 983, § 2.) Under the 1982 version of section 22, evidence of voluntary intoxication could be considered in determining whether a criminal defendant harbored either express or implied malice. (People v. Whitfield (1994) 7 Cal.4th 437, 441, 452.) In 1995, however, the Legislature amended subdivision (b) of section 22 to read, “(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (Sen. Bill. No. 121, Stats. 1995, ch. 793, § 1.) “[T]he effect of the 1995 amendment to section 22 was to preclude evidence of voluntary intoxication to negate implied malice aforethought.” (People v. Martin, supra, 78 Cal.App.4th at p. 1114.) The 1995 version of subdivision (b) did not expressly apply to crimes committed before January 1, 1996, when the 1995 amendment took effect, and there is no clear and compelling implication that the Legislature intended such a result, so we must assume that the 1995 amendment to section 22 was not retroactive. (See § 3; People v. Hayes (1989) 49 Cal.3d 1260, 1274.)
Moreover, as the Attorney General concedes, refusal of the instruction was prejudicial. The evidence showed that Vargas had a high level of PCP in his blood after the fatal car crash, and the jury specifically inquired about the relationship between PCP intoxication and consciousness of danger to human life, indicating a reasonable probability that Vargas would have received a more favorable outcome absent the instructional error. (See People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Watson (1956) 46 Cal.2d 818, 836.)
Based on this instructional error, Vargas’ conviction of second degree murder must be reversed. Because we reverse Vargas’ conviction on the grounds conceded by the Attorney General, we need not discuss Vargas’ other contentions.
DISPOSITION
The judgment of conviction is reversed as to all counts of second degree murder.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.