Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Los Angeles County Super. Ct. No. KA077553.
Diana M. Teran, 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, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Juan Carlos Dena was convicted of two counts of second degree murder (Pen. Code, § 187, subd. (a)), two counts of evading an officer causing death (Veh. Code, § 2800.3, subd. (b)), one count of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and one count of leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). His sole argument on appeal is that the trial court committed prejudicial error as to the two murder counts by instructing the jury with an impermissible mandatory presumption.
We find no instructional error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On December 24, 2006, appellant stole a white Toyota Tacoma truck. Four days later, on December 28, the El Monte Police Department received an anonymous tip regarding the truck. The tipster provided appellant’s name and address and the truck’s license plate number. Detective Ralph Batres used this information to obtain a picture of appellant and confirm the truck had been reported stolen.
The same day, Detective Dave Garcia drove in an unmarked police vehicle to the El Monte address given by the tipster. Batres drove to a nearby location in a marked police vehicle. Batres learned from Garcia that a man was sitting in a white truck with the license plate number of the stolen vehicle. Shortly thereafter, Batres saw the white Tacoma drive past his location. The driver of the Tacoma, later identified as appellant, stopped at a red light at the intersection of Fineview Street and Durfee Avenue. Batres pulled up behind him in the marked police car. When the light turned green, appellant turned left onto Durfee Avenue, headed southbound.
Batres activated his emergency lights and siren to stop appellant. Instead of stopping, appellant accelerated to between 50 and 60 miles per hour in a 30 mile-per-hour zone, and a chase ensued. With Batres in pursuit, appellant drove through three red lights and managed to avoid other vehicles in those intersections. The fourth red light he approached was at the intersection of Peck Road and Durfee Avenue. As appellant entered the intersection against the red light, he collided with a Volkswagen Golf. Jennifer Ho was the driver of the Golf, and her mother, Chau Ho, was seated in the front passenger seat. Two other family members were in the back seat of the Golf. Jennifer and Chau Ho both died from injuries sustained in the collision.
Sam El-Said, an expert in accident reconstruction, estimated that the Tacoma truck was moving at 73 miles per hour at the time of the impact. The Golf, which El-Said estimated to be moving at 19 miles per hour at the time of the impact, was propelled to a stopping point 135 feet from the point of impact.
The district attorney charged appellant with the murders of Jennifer and Chau Ho, among other offenses. The case was tried to a jury on the theory of implied malice second degree murder. The defense case relied primarily on appellant’s long history of methamphetamine addiction. Appellant testified that on December 28, 2006, he had been using methamphetamine for three or four consecutive days, with no food or sleep. When a police car pulled up behind him and activated the lights and siren, he panicked and fled impulsively.
The jury found appellant guilty of both counts of second degree murder. This timely appeal is from the judgment of conviction.
DISCUSSION
Appellant contends the jury instructions contained an unconstitutional mandatory presumption as to the second element of implied malice second degree murder.
It appears that appellant did not raise this objection in the trial court. Because appellant contends the instruction was not correct in law and was a violation of his right to due process, his claim is not the type that must be preserved by objection. (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; Pen. Code, § 1259 [“The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”].) Accordingly, we consider the merits of his argument.
“Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more ‘evidentiary’ or ‘basic’ facts. . . . Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” (County Court v. Allen (1979) 442 U.S. 140, 156.) “A mandatory presumption is a . . . troublesome evidentiary device. For it may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” (Id. at p. 157.)
The trial court instructed the jury on both second degree murder and the lesser included offense of involuntary manslaughter. The jury was instructed, “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.” (Italics added.) (See CALJIC No. 8.31.) As to involuntary manslaughter, the jury was instructed, in relevant part, “A violation of red light laws or speed limits is an unlawful act not amounting to a felony.” The court read definitions of the basic speed law and basic red light law, then further instructed the jury, “The commission of an unlawful act without due caution and circumspection would necessarily be an act that was dangerous to human life in its commission.” (See CALJIC No. 8.45.)
Appellant argues, “[I]nstructing the jury a violation of either the red light or speed limit law without due caution and circumspection is necessarily dangerous to human life created an impermissible mandatory presumption that the ‘dangerous to human life’ element of implied malice was proven. As such, the instruction withdrew the element from the jury’s consideration in violation of [appellant’s] Fifth, Sixth, and Fourteenth Amendment rights.”
Appellant relies heavily on People v. Vanegas (2004) 115 Cal.App.4th 592 (Vanegas), in which instructions similar to those given in this case were held to constitute reversible error. In Vanegas, the defendant was convicted of second degree murder after he hit and killed a man with his car. (Id. at pp. 595-596.) The trial court gave the jury the same instruction regarding the elements of implied malice second degree murder as the court gave in our case. (Id. at p. 599.) In connection with a manslaughter charge, the trial court instructed the jury, “‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent . . . and in no event at a speed which endangers the safety of persons or property. A violation of the basic speed law is the commission of an act inherently dangerous to human life and safety.’” (Id. at p. 599, italics omitted.)
The Vanegas court held the instructions constituted an impermissible mandatory presumption. (Vanegas, supra, 115 Cal.App.4th at p. 602.) It explained, “In determining whether a challenged instruction constitutes an impermissible mandatory presumption we put ourselves in the place of the jurors and ask whether the instruction, ‘both alone and in context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts.’” (Id. at pp. 599-600, quoting Carella v. California (1989) 491 U.S. 263, 265.) Because the jurors were instructed that acts which violated the basic speed law are inherently dangerous to human life, if they found the defendant violated the basic speed law (the predicate fact), they were required to find he had also committed an act whose natural consequences were dangerous to human life (the presumed fact). (Id. at p. 600.) As the latter fact is a necessary element of the second degree murder charge, without more, the instruction would unconstitutionally have “‘subvert[ed] the presumption of innocence accorded to accused persons and also invade[d] the truth-finding task assigned solely to juries in criminal cases.’” (Id. at p. 599.)
As in our case, the challenged instructions were given in connection with two different charges. The elements of implied malice were given in connection with the murder charge, while the speed law instruction was given in connection with the manslaughter charge. (Vanegas, supra, 115 Cal.App.4th at p. 600.) The Vanegas court concluded this did not prevent the appearance of a mandatory presumption regarding the dangerousness element of the murder charge, because the jury had been instructed that the instructions should be considered as a whole and that the order of the instructions had no significance as to their relative importance. (Ibid.) Likewise, the jury in our case was instructed to consider the instructions as a whole.
But there is more. The instructions given by the trial court in our case included qualifying language missing from the instructions in Vanegas. Appellant’s jury was instructed, “The commission of an unlawful act without due caution and circumspection would necessarily be an act that was dangerous to human life in its commission.” (Italics added.) Thus, the jurors were instructed to consider facts beyond the mere commission of an unlawful act in order to draw the inference that the act was necessarily dangerous to human life. Appellant’s jury was further instructed, “The term ‘without due caution and circumspection’ refers to a negligent act which is aggravated, reckless, and flagrant, and which is such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequence of such acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen. It must also appear that the death or danger to human life was not the result of inattention, mistaken judgment, or misadventure, but the natural and probable result of an aggravated, reckless, or grossly negligent act.” (See CALJIC No. 8.46.)
Taken together, the instructions required the jury to find a violation of the basic speed law or the red light law was necessarily dangerous to human life only if the violation was committed in an aggravated, reckless or grossly negligent manner, the natural and probable result of which was death or danger to human life. Reasonable jurors would not have understood the instructions to mean that the “dangerous to human life” element of the second degree murder charge was conclusively satisfied upon a mere finding that appellant violated the basic speed law or red light law. Accordingly, the instructions did not constitute an impermissible mandatory presumption.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.