Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA233700. Barbara R. Johnson, Judge.
Koryn & Koryn and Daniel G. Koryn, 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 Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
Robert Chavez was involved in a fatal car crash after he attempted to evade police while drunk driving in a stolen jeep. A jury convicted Chavez of second degree murder and several other crimes. In February 2005, this court reversed the second degree murder conviction. After retrial, a jury again found Chavez guilty of second degree murder. Chavez challenges the conviction on three grounds. First, he argues that the trial court committed an instructional error by giving CALCRIM No. 520—Murder with Malice Aforethought—without defining a “predicate unlawful act.” Second, Chavez argues that the trial court failed to properly instruct the jury on lesser included offenses of gross vehicular manslaughter while intoxicated and vehicular manslaughter while intoxicated. Third, Chavez contends that the prosecutor committed prejudicial misconduct by misstating the law and appealing to the passions and prejudices of the jury in his closing statement. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 8, 2002, police officers noticed Chavez driving a green Jeep Cherokee with its headlights off. They began following Chavez in a patrol car and watched as he swerved between lanes and entered the freeway. The officers in pursuit determined that the jeep had been reported stolen. Chavez veered across three lanes of heavy freeway traffic and drove on the shoulder. The officers activated the patrol car’s lights and siren, but Chavez did not pull over. He continued to drive on the shoulder at excessive speed, then exited the freeway. Chavez ran a red stoplight at the end of the off-ramp and continued driving over 50 miles per hour through a residential neighborhood where the speed limit was 35 miles per hour. Chavez then changed lanes abruptly and struck another car, killing its driver. Several hours later Chavez’s blood-alcohol content was recorded at 0.12 percent, above the 0.08 percent legal limit. He also tested positive for marijuana.
In 2003, a jury convicted Chavez of second degree murder (Pen. Code, § 187, subd. (a)), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), evading an officer causing death (Veh. Code, § 2800.3), unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood-alcohol content of 0.08 percent and causing injury (id., subd. (b)), and evading an officer with willful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)). With respect to each count, the jury found Chavez was armed with a gun. He challenged the second degree murder conviction on appeal.
On the second degree murder charge, the prosecutor had argued alternative theories of implied malice and second degree felony murder based on a violation of Vehicle Code section 2800.2. While Chavez’s first appeal was pending, the California Supreme Court issued People v. Howard (2005) 34 Cal.4th 1129, which held that a violation of section 2800.2 is not inherently dangerous to human life and does not support a felony-murder conviction. Because nothing in the record indicated that the jury unanimously based its verdict solely upon the implied malice theory, we reversed the second degree murder conviction.
During the retrial of the second degree murder charge, the prosecutor pursued only an implied malice theory. A jury again convicted Chavez of second degree murder. The court sentenced him to state prison for 15 years to life plus eight months. This appeal followed.
Following the 2007 trial, the court sentenced Chavez on the murder count and resentenced Chavez on the other counts remaining from the first trial.
DISCUSSION
I. The Trial Court Properly Instructed the Jury on Implied Malice
Chavez contends the trial court committed reversible error in its instructions to the jury on implied malice. We disagree.
The court instructed the jury with CALCRIM No. 520, as follows:
“The defendant is charged in count one with murder. [¶] 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. [¶] Proof of implied malice aforethought is sufficient to establish the state of mind required for murder. [¶] . . . [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural 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. [¶] . . . [¶] 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.”
Chavez did not object or request that the trial court modify or supplement the instruction. However, he asserts on appeal that the trial court should have identified for the jury the “intentional acts” it could consider in determining whether he acted with implied malice. Initially we note that “ ‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ ” (People v. Hart (1999) 20 Cal.4th 546, 622.) Chavez’s failure to request a supplemental instruction in addition to CALCRIM No. 520 forfeits this argument on appeal. However, even if the argument were preserved for appeal we would reject it.
Chavez relies solely on People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman) to support his argument. This reliance is misplaced. In Prettyman, our Supreme Court analyzed a trial court’s duty to instruct on the natural and probable consequences doctrine as it applied to the criminal liability of an aider and abettor. In an aiding and abetting case, “a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (Id. at p. 254.) In such cases, the trial court must sua sponte identify and describe “uncharged target offenses” in its jury instructions “whenever uncharged target offenses form a part of the prosecution’s theory of criminal liability and substantial evidence supports the theory.” (Id. at pp. 266-267.) Describing the uncharged target offenses is necessary because “at trial each juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act. . . . To ensure that the jury will not rely on [a generalized belief that the defendant intended to assist and/or encouraged unspecified nefarious conduct] as a basis for conviction, the trial court should identify and describe the target or predicate crime that the defendant may have aided and abetted.” (Id. at p. 268.)
Prettyman does not require the trial court to offer a supplemental instruction when the natural and probable consequences doctrine arises in other contexts. On the contrary, the holding and analysis focuses only on aiding and abetting cases, which present the target/nontarget crime issue. This was not an aiding and abetting case. The jury was not confronted with the question of whether one crime resulted as the natural and probable consequence of other criminal activity committed by a confederate. Instead, the jury was tasked only with determining if danger to human life was a natural consequence of Chavez’s intentional activity. Prettyman does not apply to this situation.
People v. Martinez (2007) 154 Cal.App.4th 314 (Martinez), is instructive. In Martinez, the defendant killed a mini-market clerk during a fight. (Id. at pp. 319-321.) He was convicted of second degree murder. On appeal, the defendant argued that under Prettyman, the trial court erred by failing to sua sponte identify for the jury the “act” upon which the prosecution was relying to establish implied malice. (Martinez, at p. 332.) Division Five of this appellate district rejected this argument, explaining: “Defendant’s argument based on the ‘natural consequences’ language in CALCRIM No. 520 confuses two distinct concepts. . . . [T]he sua sponte duty to instruct a jury to which defendant refers arises only when the prosecution relies on the ‘natural and probable consequences’ doctrine in the context of aiding and abetting liability. [Citation.] But this is not an aiding and abetting case. This is a murder case, not involving an accomplice, in which the rationale underlying the sua sponte instruction rule in Prettyman is not present.” (Id. at p. 333.)
The court further noted that the facts of the case did not require the jury to analyze “two distinct transactions—a target crime, such as robbery, and a nontarget crime, such as murder.” (Martinez, supra,154 Cal.App.4th at p. 333 .) Rather, “defendant was charged with one count of second degree murder based upon a single transaction—the fight between defendant and decedent in the parking lot of the convenience store. . . . Thus, no duty to issue sua sponte instruction identifying and describing a target offense arose in this case.” (Id. at pp. 333-334.) This reasoning applies equally here.
Chavez attempts to distinguish Martinez by arguing that the case involved only a “single transaction,” while here the “charged offense was murder based on a fatal drunk driving accident, which involved the jury’s assessment of appellant’s level of intoxication/impairment, the manner in which he drove his vehicle during the fatal accident, and causation, i.e., whether his actions caused the decedent’s death as opposed to contributory intervening negligence.” This novel argument does not withstand analysis or distinguish Martinez. In considering whether Chavez committed an act, the natural consequences of which are dangerous to human life, the jury was not required to look at his various behaviors in isolation from one another. Instead, it was entitled to consider all of the events leading up to the fatal crash. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 108; see also People v. McCarnes (1986) 179 Cal.App.3d 525, 533-535.) In that sense, Chavez’s series of actions leading up to the crash constituted “one transaction,” not separate “nontarget” crimes.
Moreover, cause of death is a separate issue from implied malice. The trial court addressed causation issues in a separate instruction.
We therefore agree with Martinez and conclude that the trial court did not err by failing to sua sponte identify Chavez’s “intentional act” in the context of implied malice.
II. No Instruction on Lesser Included Offenses was Required
Chavez also argues that the trial court erred by not instructing the jury on the elements of gross vehicular manslaughter while intoxicated and vehicular manslaughter while intoxicated as lesser included offenses of murder. However, he concedes that in People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez), our Supreme Court held that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. The court explained: “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.” (Id. at p. 991.) Thus, the court reasoned that gross vehicular manslaughter while intoxicated could not be treated as a lesser included offense of murder. (Id. at p. 992.) The same reasoning similarly applies to vehicular manslaughter while intoxicated.
Chavez disagrees with the majority’s reasoning in Sanchez, but we are bound by the rulings of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also People v. Haynes (1998) 61 Cal.App.4th 1282, 1298.) Under Sanchez, the trial court could not instruct on gross vehicular manslaughter while intoxicated or vehicular manslaughter while intoxicated as lesser included offenses of murder.
Chavez further contends that it would not necessarily be improper for the trial court to instruct on gross vehicular manslaughter “if there was a basis in the evidence for the use of the instructions, and if the prosecutor did not object.” This may be true, but it does not help Chavez. While the parties may mutually agree to have the trial court instruct on a lesser related offense if the defendant requests the instruction and the prosecutor agrees, there was no such agreement here. (People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19; see also People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.) Indeed, Chavez did not even request a lesser related offense instruction. The issue was never before the trial court.
In sum, the trial court did not err in failing to sua sponte instruct the jury on gross vehicular manslaughter while intoxicated or vehicular manslaughter while intoxicated.
III. The Prosecutor Did Not Commit Misconduct
Chavez asserts that two of the prosecutor’s comments during his rebuttal argument constituted prosecutorial misconduct. We disagree.
A. The Closing Arguments
Defense counsel argued in closing argument that Chavez’s actions preceding the fatal crash were not inherently dangerous. She contended that Chavez did not deliberately run into the victim, but hit his brakes and “did everything possible” to avoid the collision. Defense counsel further argued the evidence did not show that Chavez acted with conscious disregard to human life. She stated: “There was no reason for Mr. Chavez to think he would crash that night. He’d either get away or he’d get caught. One or the other. There’s no reason to believe—people who are running from these police don’t ever believe—first, they don’t believe they’re going to get caught. Second, they don’t think they’re going to crash. They really don’t know that they’re going to kill somebody.”
The prosecutor responded in his rebuttal argument. He reminded the jury that Chavez did not dispute that he was under the influence of alcohol and marijuana, was speeding, and tried to outrun the police. The prosecutor then argued:
“But how was [the victim] supposed to know that this is what’s about to happen. He can’t know that. Who does know that their conduct is creating a dangerous situation? That’s the defendant. Right? He knows what he’s doing. He admitted to you he was drunk. Not admitted to you, excuse me, to the police officer. There’s no dispute. .12, well over the legal limit. Everybody knows. [¶] And it says, what would a reasonable person think of this? That’s how they talk about natural consequences. I think every reasonable person knows when you drive drunk, you smoke marijuana, and you’re speeding, there’s a potential for devastation. I mean, we hear about this all the time, the horrors of drunk driving. That’s why we have MADD [Mothers Against Drunk Driving].”
The trial court overruled defense counsel’s objection to the statements above. Later in the argument, the prosecutor stated:
“[Chavez] knew what he was doing was dangerous and wrong. And you know that because everybody knows that you can’t drink and drive. It’s unsafe. Everybody knows. And when the police flip their lights on, you stop. And he didn’t do it. All those opportunities, he didn’t do it. That’s that conscious disregard that we’re talking about. That’s the natural consequence of his conduct. [¶] It’s dangerous to drink and drive, to speed, and to evade the police. Every time you do this, you don’t know if someone’s going to die, but the potential is there. And that’s why we have these laws. And when you do these things and somebody dies, there’s going to be a severe sanction of the law, and that is murder.”
Defense counsel again objected. At sidebar, she argued that the prosecutor’s comment improperly suggested that Chavez’s actions were inherently dangerous crimes. The trial court overruled the objection.
B. Discussion
“When an appellant bases a prosecutorial misconduct claim on the prosecutor’s arguments to the jury, we consider how a reasonable juror would or could have understood the statement in the context of the entire argument. [Citation.] No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. [Citation.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 839.)
Chavez contends that the prosecutor’s first challenged comment regarding drunk driving and MADD was an improper appeal to the passion or prejudice of the jury. We conclude otherwise. While it is improper for a prosecutor to appeal to the jury’s passions or prejudices, (People v. Cornwell (2005) 37 Cal.4th 50, 92), the comments here did not reach that level. In context, the prosecutor’s statements did not encourage the jury to act as a matter of public policy or to deter future lawbreaking. (Ibid.) Instead, the prosecutor made the challenged argument to explain why the jury could infer that Chavez knew danger to human life was a natural and probable consequence of his actions. It rebutted the defense claim that Chavez did not know his actions would endanger human life. We conclude that the comment was not misconduct.
People v. Pitts (1990) 223 Cal.App.3d 606 (Pitts), does not support Chavez’s argument. In Pitts, the prosecutor made multiple egregious statements designed to play upon the passions and prejudices of the jurors, including comments suggesting that jurors who voted for acquittal would be at odds with Christ. (Id. at p. 702.) Pitts is therefore factually inapposite.
Chavez asserts that the prosecutor’s other remarks misstated the law. He maintains that the comment was tantamount to urging the jury to convict him on an “inherently dangerous felony” theory. We again disagree after considering the comment in context.
Standing alone, the prosecutor’s comment that “when you do these things and somebody dies, there’s going to be a severe sanction of the law, and that is murder,” could have been misleading. By itself, the comment could suggest that because a death resulted from Chavez’s particular set of behaviors, he was guilty regardless of the presence or absence of malice. But the jury could not have come to such a conclusion after hearing the statement as it was made—in context. Throughout the prosecutor’s initial closing argument and in rebuttal, he discussed implied malice and the concept of conscious disregard for danger to human life. Only sentences before the challenged comment, the prosecutor stressed Chavez’s awareness that he was engaging in dangerous behaviors. The prosecutor’s closing argument as a whole explicitly and implicitly focused the jury on implied malice and related concepts. This focus continued after defense counsel’s objection. The prosecutor told the jury:
“At the time he acted, the whole continuum of conduct. Either—he knew his act was dangerous to human life. Obviously, you know, you have to infer this from his conduct. And I think it’s very clear that he knew what he was doing was dangerous. [¶] Now, did he necessarily think that there would definitely be a collision? Certainly, the opportunity was there. And that’s exactly what happened in this case. You know, in this case, you know, look, no one is saying that every time you evade the police or every time you drive drunk there’s going to be a death. But what we are saying is when you combine the two, all those things, you have a recipe for disaster. And I think that’s what we’re talking about in this case. That’s what makes it implied malice. That’s what it makes it murder when you put it all together.”
We do not believe there is a reasonable likelihood that the jury understood the prosecutor’s comments to mean that Chavez’s actions were inherently dangerous crimes, and as a result it could find Chavez guilty of murder without finding implied malice. (People v. Lucas (1995) 12 Cal.4th 415, 475.) The trial court did not abuse its discretion in overruling Chavez’s objections. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
In light of our conclusion that the prosecutor did not commit misconduct, Chavez’s argument that the totality of the prosecutor’s prejudicial misconduct requires reversal is moot.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., FLIER, J.