Opinion
D049608
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. MOISES PEREZ CARREON, Defendant and Appellant.
Moises Perez Carreon appeals a judgment arising out of his conviction of two counts of second degree murder. Carreon was also convicted of vehicular manslaughter while intoxicated, evading an officer causing death, driving under the influence causing death, driving under the influence with a blood alcohol content (BAC) of more than .08 percent causing injury and assault with a deadly weapon, but does not raise any appellate challenges to those convictions. He contends that the murder convictions must be reversed because the court (1) improperly instructed the jury that a violation of the basic speed law is an act inherently dangerous to human life and (2) failed to give complete and accurate instructions regarding the required mental state to support those convictions. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of August 12, 2003, Carreon was driving his van erratically, cutting off and tailgating other vehicles, speeding and running red lights. Carreons brother, Ernesto, who was one of two passengers in the van, asked why he was driving "so crazy" and requested that Carreon let him and the other passenger get out of the van; Carreon responded by asking whether Ernesto was afraid to die. Carreon stopped the van at the intersection of Olive and San Antonio to let his passengers out. Although the van was headed north on San Antonio, Carreon turned it around to chase the men as they walked west on Olive. He ran through the stop sign as he turned onto Olive and drove up onto the sidewalk where the men were walking. Ernesto had to jump out of the way to avoid getting hit.
After driving back onto the road, Carreon stopped the van abruptly in the middle of the street, causing the car behind him to have to swerve to avoid hitting the van. Carreon then focused his attention on the car, repeatedly trying to back his van into it, although in each instance the driver was able to back the car away fast enough to avoid getting hit. After Carreons third attempt, the other driver was able to drive the car around the van, but Carreon continued after it. He followed the car and, as it waited at a red light, cut into the intersection in front of it to block it from turning. The driver was again successful in getting the car around the van, but Carreon continued to follow it. He subsequently passed the car, yelling and making obscene gestures at its occupants, while the passenger in the car was calling 911. Carreon thereafter cut over in front of the car and turned right at the next cross street.
Pomona police responded to the passengers 911 call, but as they approached Carreons van, Carreon accelerated away. A high speed chase ensued, during which Carreon ran numerous red lights, drove into oncoming traffic lanes and reached speeds of up to 80 miles per hour. The chase ended when Carreons van ran another red light while traveling approximately 76 miles per hour and struck a pickup truck that was waiting in the on-coming lane to make a left-hand turn. Police found 6 empty beer cans and an empty 12-pack beer box in Carreons van and three hours after the accident, a blood test showed that Carreon, who had two prior driving under the influence convictions, had a BAC of .08 percent.
The driver of the pickup truck died at the scene and his wife, who was riding as a passenger in the front seat of the pickup, died two years later from injuries caused by the accident. The two other passengers in the pickup were also seriously injured. Carreon was ultimately arrested, charged and convicted of two counts of second degree murder arising out of the deaths. He appeals those convictions.
DISCUSSION
1. Instruction regarding the Basic Speed Law
At trial, the court instructed jurors that they could find Carreon guilty of second degree murder based on implied malice if they found:
"(1) The killing resulted from an intentional act,
"(2) The natural consequences of the act are dangerous to human life, and
"(3) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (CALJIC No. 8.31.)
The court also instructed the jury regarding the basic speed law of the state and that "[a] violation of the basic speed law is the commission of an act inherently dangerous to human life . . . ." (CALJIC No. 8.95.) Carreon contends that the trial court violated his right to due process in giving the latter instruction, which he contends had the effect of removing the "inherently dangerous" element of the offense from the jurys consideration.
The prosecution must prove every element of a charged offense beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 364) and thus an instruction that advises the jury to find that an element of an offense is established by proof of another fact is unconstitutional because it conflicts with the presumption of innocence and essentially relieves the prosecution of its burden of proving all elements of the offense beyond a reasonable doubt. (Carella v. California (1989) 491 U.S. 263, 265.) The challenged instruction suffers from precisely such a defect. (People v. Vanegas (2004) 115 Cal.App.4th 592, 602 (Vanegas) ["the instruction on the dangerousness to human life element of implied malice together with the instruction [that] any violation of the basic speed law is the commission of an act inherently dangerous to human life create[s] an impermissible mandatory presumption [that] proof of the latter is proof of the former"].)
The question then becomes whether this instructional error was prejudicial and thus requires a reversal of the convictions. An instructional error that creates an improper mandatory presumption is subject to review under Chapman v. California (1967) 386 U.S. 18, 24, which holds that the error is harmless if it is beyond a reasonable doubt that "[the] unconstitutional presumption did not contribute to the verdict." (Vanegas, supra, 115 Cal.App.4th at p. 602, fn. omitted.) On the record before us, we conclude that the instructional error was harmless.
The evidence of the dangerousness of Carreons acts was overwhelming. Carreon had been drinking prior to the fatal accident and his BAC at the time was between .10 and .14 percent. Immediately preceding the accident, Carreon drove 7 to 8 miles on surface streets, at speeds up to more than 30 miles an hour above the posted speed limit, and in the process of doing so, he ran at least 12 red lights or stop signs and nearly collided with several other vehicles. As Carreon ran the final red light and proceeded into the intersection where the pickup truck was waiting to turn left, he was driving approximately 76 miles per hour, with the sun in his eyes.
In arguing the case to the jury, the prosecutor urged that driving 30 miles per hour in excess of the posted limit was itself inherently dangerous "and then you combine that with the fact that hes running through red lights, I mean, how much more dangerous[ly] could the defendant have acted?" Defense counsel did not contest that Carreon had engaged in dangerous conduct and in fact was willing to concede to the jury that Carreon had been "grossly negligent."
From the evidence before it, the jury not only convicted Carreon of second degree murder, but also found him guilty of two counts of gross vehicular manslaughter while intoxicated arising out of the accident. In doing the latter, the jury necessarily concluded that Carreon had committed an unlawful act that was "dangerous to human life under the circumstances of its commission . . . ." (CALJIC No. 8.93.) While the standards applicable to gross vehicular manslaughter, on one hand, and implied malice murder, on the other, are not identical (People v. Watson (1981) 30 Cal.3d 290, 296), the jury clearly made the requisite finding that Carreon had committed an unlawful act that was dangerous to human life. (See Vanegas, supra, 115 Cal.App.4th at p. 603.)
Based on the strength of the evidence and the arguments of counsel, we conclude that the challenged instruction "was unimportant in relation to everything else the jury considered" on the issue of whether Carreon engaged in conduct that was inherently dangerous to human life. These circumstances, along with the jurys finding on gross vehicular manslaughter while intoxicated, establish that there is no possibility the challenged instruction adversely affected the outcome of the trial. (Vanegas, supra, 115 Cal.App.4th at pp. 595-596, 602.)
2. Instruction regarding the Requisite Mental State
The court instructed the jury as to the required mental state for murder as follows:
"In the crimes charged in Counts 1 and 2 [the murder counts] there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists[,] the crime to which it relates is not committed." (CALJIC No. 3.31.5.)
"Murder of the second degree is the unlawful killing of a human being when:
"1. The killing resulted from an intentional act,
"2. The natural consequences of the act are dangerous to human life, and
"3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
"When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being." (CALJIC No. 8.31.)
Carreon contends that these instructions were incomplete and misleading because they did not make clear that the jury had to find he had knowledge that his behavior posed a risk to human life.
Assuming, without deciding, that Carreon did not waive this issue on appeal by virtue of having failed to request a modification of the instructions below (but see People v. Jenkins (2000) 22 Cal.4th 900, 1020 ), his argument is unavailing. The language of the instructions themselves required the jury to find that Carreon deliberately performed a dangerous act "with knowledge of the danger to, and with conscious disregard for, human life." (CALJIC No. 8.31, italics added.)This is precisely what the law requires. (Pen. Code, § 188; People v. Nieto Benitez (1992) 4 Cal.4th 91, 103-104.)
Carreon nonetheless argues that the trial court did not reemphasize this point in response to a series of jury questions relating to what could constitute an "intentional act" for purposes of the second degree murder instructions. Notably, however, the jurys questions focused on whether acts preceding the collision could constitute the "intentional act," not on the state of mind necessary to support the offense; only one of the questions (in which the jury asked the court to define "intentional") was at all related to the necessary state of mind and it did not have any bearing on the knowledge component of the instruction. In addition, the court responded to one of the jurys questions by reiterating that the charge required that "the act or acts [be] deliberately performed with knowledge of the danger to and with conscious disregard for human life."
The courts instructions regarding the requisite state of mind were clear and not misleading and thus do not provide a basis for reversal of the second degree murder convictions. (People v. Nieto Benitez, supra, 4 Cal.4th at p. 107.)
DISPOSITION
The judgment is affirmed.
We Concur:
McDONALD, Acting P.J.
AARON, J.