Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. F0655083-4 of Fresno County. Franklin P. Jones, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Evert Keith Howard was convicted, on the theory of implied malice, of the second degree murder of Jeannette Rodriguez. Defendant appeals, raising several instructional issues and claiming the court erroneously precluded him from presenting evidence of his voluntary intoxication. We affirm.
Defendant was retried for murder after the California Supreme Court reversed his original second degree murder conviction finding that evading a police officer cannot be the basis for second degree felony murder. (People v. Howard (2005) 34 Cal.4th 1129.) The issues on this appeal are different.
FACTS
In the afternoon of May 23, 2000, Luis Garcia came out to the parking lot at his place of employment. His 1997 Chevrolet Tahoe was missing from the parking lot. He had left his keys in the car. When he parked his car, it had a front and rear license plate.
In the early morning hours of May 24, 2000, California Highway Patrol (CHP) Officer Gary Stephany observed a Chevrolet Tahoe without license plates. Defendant was the driver of the Tahoe. Officer Stephany decided he would stop the vehicle for the license plate violation and because he suspected it might be a stolen vehicle.
Officer Stephany turned his lights on as a signal to defendant to pull over and stop. Defendant started to yield and pulled the vehicle onto the shoulder, but kept creeping forward without stopping. Stephany turned his spotlights on the Tahoe. The Tahoe slowed down then sped up. Stephany turned on more lights on his patrol car and also turned on the siren. Defendant kept creeping forward. Stephany announced over the speaker system for defendant to stop.
Defendant finally pulled over and stopped. Stephany told defendant to turn off the ignition to the Tahoe. Defendant turned off the ignition. Stephany’s partner got out of the patrol car and went toward the Tahoe. Stephany got out of the driver’s side and began to move into position to make a felony stop. Defendant started the Tahoe, put it in gear and “floored it.”
Stephany and his partner returned to the patrol car and began to pursue the Tahoe. Stephany was driving over 90 miles per hour to catch the Tahoe. Defendant turned out the lights on the Tahoe, making it more difficult for Stephany to see the Tahoe.
The pursuit continued with defendant driving at an excessive speed. Defendant failed to stop at several stop signs. Defendant engaged in difficult maneuvers during the chase, including power sliding through a controlled intersection. During these difficult maneuvers defendant maintained control of the vehicle. Defendant began driving northbound on southbound lanes. Stephany paralleled him going in the correct direction. Defendant came back across the center divider and in a difficult maneuver, particularly in a sports utility vehicle, began driving on a dirt road.
Stephany was unfamiliar with the dirt road. There was a lot of dust. Stephany slowed his pursuit to 25 miles per hour and continued to broadcast his position on the radio. Stephany lost sight of the Tahoe.
CHP Officer Anthony Arcelus heard the dispatch of a unit in pursuit of the Tahoe. Officer Arcelus saw the Tahoe and began pursuing it. Arcelus was driving 80 miles per hour and the Tahoe was pulling away from him. Defendant failed to stop at a red light and made a sharp turn. Arcelus thought defendant was going to crash the car, but he did not. Arcelus was impressed by defendant’s maneuvering. Defendant ran through a stop sign with his lights off. Arcelus ended his pursuit because defendant was headed toward a part of town that had a lot of foot traffic at night. Defendant was traveling at 90 miles per hour.
Although Arcelus had ended his pursuit, he could still see the Tahoe. The Tahoe approached an intersection with a red light. A white vehicle approached from the opposite direction. The Tahoe crashed into the white car.
John Mikkelsen, a video inspection specialist, was working in the area of the crash. He heard an “explosion.” When he immediately looked up, the traffic signal was green in the direction driven by the white car.
Jeannette Rodriguez was thrown from the white car and died at the scene. Her husband, Robert, was also thrown from the car. He suffered major injuries.
Defendant was in the driver’s seat of the Tahoe. He asked Officer Arcelus for help out of the Tahoe because it was on fire. Defendant was injured and in pain.
Paramedic Roy Jobe assisted defendant. Defendant said he was the driver of the Tahoe. Although defendant had a fracture to his leg and was in pain, he was coherent and there was no indication he was under the influence.
Lori Bennett was a passenger in defendant’s car. When defendant sped away from the officers, Bennett asked him why he was doing this. Defendant said the Tahoe was not stolen but he just had to do this. Bennett begged and pleaded to be let out of the car. Defendant was hyper-focused on his driving and ignored what Bennett was saying. At trial Bennett could not remember what color the light was before the collision, but had told officers previously that the light was red when they collided with the white car.
CHP accident specialists testified that the Tahoe was traveling at approximately 90 miles per hour at the time of the collision. The white car was traveling the speed limit. There were no mechanical defects on the white car or the Tahoe. The Tahoe was accelerating and generating as much power as it could at the time of the accident.
Defense
Defendant testified on his own behalf. Defendant testified that when he saw the CHP car behind him he thought that he was in a stolen truck, he was going to be found in violation of probation, and he might not be able to see his dying grandmother.
Defendant drove off after the officers stopped him. He did not remember thinking about looking for cars. He did not intentionally turn off the lights on the Tahoe but broke the light switch. The passenger kept yelling at him.
He did not remember doing skilled driving maneuvers, but he had been taught to drive by his cousin. He could do these maneuvers through experience and was traveling on “auto pilot.” He knew the dirt road he turned onto because he had lived in that exact area. It did not cross his mind that his conduct might hurt someone. He did not think his driving would kill or hurt someone.
On cross-examination defendant testified that he had removed the license plates from the Tahoe. He testified that he knew that running red lights, running stop signs, speeding, and driving the wrong way down a road is dangerous and could kill someone. He said he was a trained driver. He was trying to get away from the officers and did not want to get caught. He was on drugs at the time of the incident.
DISCUSSION
I. CALJIC No. 1.22
Defendant contends that the trial court erred in instructing the jury with CALJIC No. 1.22, which defines malice as “a wish to vex, annoy or injure another person, or an intent to do a wrongful act.”
Although defendant specifically requested that CALJIC No. 1.22 be given and the People now argue invited error, we choose to decide the issue based on the merits.
CALJIC No. 1.22 is drawn from Penal Code section 7, which sets forth definitions to be utilized for words and phrases in the Penal Code unless the word has another meaning evident from the context in which it was used. It has been repeatedly held that courts should not instruct the jury with CALJIC No. 1.22 when a defendant is charged with murder because malice as required for a murder conviction requires more than the definition of malice contained in CALJIC No. 1.22.
All future code references are to the Penal Code unless otherwise noted.
The argument made by defendant here was made by appellants as early as 1898. In People v. Dice (1898) 120 Cal. 189, the appellant argued that the court erred in defining malice as set forth in section 7 in a murder trial. The Supreme Court found “the complaint unfounded. The court but instructed the jury as to the general import of the word ‘malice,’ and immediately and in the same connection specifically defined the word when used in the code as an element of the crime of murder.” (Dice, supra, at p. 202.)
Several years later, in People v. Waysman (1905) 1 Cal.App. 246, the appellant raised the issue again. The Waysman court provided some elaboration on the issue and stated that the malice found in section 7 “could be predicated of a very trivial act which would wholly fail to manifest ‘a deliberate intention unlawfully to take away the life of a fellow-creature’ [express malice]; or from which it might be implied that ‘no considerable provocation appears,’ or which would fail to show ‘an abandoned and malignant heart [implied malice].’ [Citation.]” (Waysman, supra, at p. 248.) The Waysman court found that a malice instruction from section 7 should not be given in a murder case and if the jury had been left to be guided alone by the section 7 definition of malice, the error would be prejudicial. But, relying on Dice, the Waysman court found that the instructions to the jury contained the specific definition of malice as applied to murder and thus reversal was not warranted. (Waysman, supra, at pp. 248-249.)
Here, CALJIC No. 1.22 was read to the jurors in the initial phase of instructions defining general terms and principles applicable to the case. In the specific instructions relating to murder, the jury was told that the mental state for murder would be included in the definition of the crime. Murder was defined as requiring the defendant to kill with malice aforethought. Malice for murder was then defined to the jury as stated in CALJIC No. 8.11. A special jury instruction set forth the distinction between implied malice aforethought and gross negligence. Implied malice was again defined in this instruction.
We, like the court in Dice, find defendant’s complaint unfounded. The jury was clearly informed that it must find implied malice before it could convict defendant of murder. Implied malice was specifically defined for the jury on more than one occasion as it related to the charge of murder. There was no chance for confusion. We find this to be true even if we utilized the Chapman (Chapman v. California (1967) 386 U.S. 18) beyond-a-reasonable-doubt standard of constitutional error as urged by defendant.
Defendant’s reliance on People v. Jeter (2005) 125 Cal.App.4th 1212 does not aid his position. In Jeter, the trial court erroneously instructed the jury with CALJIC No. 1.22, and also gave conflicting general intent instructions and an instruction that directly contradicted the requirement that malice aforethought be shown. The instructional errors in Jeter seriously compounded the minor error of erroneously instructing the jury as to the general import of the word malice.
II. Implied-Malice Murder as a General Intent Crime
The jury was instructed that the crime of second degree murder was a general intent crime. Defendant claims it was error to instruct that implied-malice murder is a general intent crime.
“The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender.” (People v. Hood (1969) 1 Cal.3d 444, 455.) Implied-malice murder does not fit neatly into the definition of a specific intent crime nor does it fit into the California Supreme Court’s definition of a general intent crime. (People v. Whitfield (1994) 7 Cal.4th 437, 449-450.) We need not determine this thorny issue here because “the general principle that--other than circumstances involving a mental state defense--‘the characterization of a crime as one of specific intent [or general intent] has little meaningful significance in instructing a jury. The critical issue is the accurate description of the state of mind required for the particular crime.’ [Citations.]” (People v. Hering (1999) 20 Cal.4th 440, 447, brackets in original.)
As set forth in the previous issue, the state of mind required for implied malice, as a theory of second degree murder, was set forth accurately in the instructions to the jury. Error, if any, in describing second degree murder, based on implied malice, as a general intent crime was harmless. (Chapman v. California, supra, 386 U.S. 18)
III. Voluntary Intoxication as a Defense to Implied-Malice Murder
Defendant sought to present evidence of his voluntary intoxication as a defense to the murder charge. The court denied his request. He now contends the court erred in excluding evidence of voluntary intoxication as a defense to implied-malice murder. He argues the trial court’s ruling denied him due process and equal protection.
Section 22, originally enacted in 1872, set forth when voluntary intoxication may be admitted at trial. In People v. Whitfield, supra, 7 Cal.4th 437, after section 22 had been amended, the court found that voluntary intoxication was admissible on the issue of whether a defendant harbored malice, and applied to both express and implied malice murder cases. In 1995, in reaction to the Whitfield holding, the Legislature amended section 22, subdivision (b). (People v. Mendoza (1998) 18 Cal.4th 1114, 1126.) Section 22, subdivision (b) now provides, “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.”
“As part of the 1995 amendment to section 22, subdivision (b), evidence of voluntary intoxication is no longer admissible on the issue of implied malice aforethought.” (People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6.)
Defendant’s argument that voluntary intoxication is relevant to negate the subjective element of implied malice and the refusal to allow such evidence is a violation of his due process right to present a defense was considered by this court in People v. Martin (2000) 78 Cal.App.4th 1107. We found no due process violation. “The 1995 amendment to section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited. We find nothing in the enactment that deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt, including, in this case, knowledge.” (Id. at p. 1117.) Defendant has not provided us with any reason to depart from our previous holding in Martin.
In addition to arguing that there was a due process violation, defendant also argues that he was denied equal protection because a defendant accused of murder has the right to raise a voluntary intoxication defense to negate express malice aforethought yet those tried for an implied malice murder cannot raise the defense of voluntary intoxication.
“To succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568.) “The concept recognizes that persons similarly situated with respect to the legitimate purpose of the law receive like treatment, but it does not, however, require absolute equality.” (People v. Romo (1975) 14 Cal.3d 189, 196.)
A defendant charged with implied-malice second degree murder is not similarly situated to a defendant charged with express-malice murder. An implied-malice murder is found when the intent to do an act dangerous to human life results in a killing, while an express-malice murder requires proof of intent to kill. Although both situations can result in a finding of second degree murder, the elements that must be proved to result in a conviction are different. For example, a defendant cannot be convicted of a conspiracy to commit murder or assault with the intent to commit murder based on implied malice. (People v. Swain (1996) 12 Cal.4th 593; People v. Murtishaw (1981) 29 Cal.3d 733, 764.) “Implied malice…cannot coexist with a specific intent to kill.” (Id. at p. 765.) A murderer who acts with intent to kill (express malice) is not similarly situated to a murderer who intentionally performs an act dangerous to human life with knowledge of the danger with conscious disregard for human life (implied malice).
Even if defendants convicted of express-malice murder and implied-malice murder were similarly situated, the prohibition on admitting evidence of voluntary intoxication for a charge of implied malice murder does not violate equal protection principles. A statute is reviewed for a violation under the equal protection clause under different levels of scrutiny based upon the nature of the classification. The most exacting scrutiny is applied to classifications based on race or national origin or classifications affecting fundamental rights. An intermediate level of scrutiny is applied to classifications based on sex or illegitimacy. The minimum standard for equal protection purposes is that the statutory classification must be rationally related to a legitimate governmental purpose. (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837.)
We agree with the court in People v. Timms (2007) 151 Cal.App.4th 1292 that section 22, limiting the admissibility of voluntary intoxication, is subject to rational-basis scrutiny. “Criminal classifications determining gradations of culpability do not implicate strict scrutiny. [Citation.] A defendant does not have a fundamental interest in the specific term of imprisonment or the definition or designation of a particular crime. [Citation.] ‘Application of the strict scrutiny standard in this context would be incompatible with the broad discretion the Legislature traditionally has been understood to exercise in defining crimes and specifying punishment.’ [Citation.]” (Timms, supra, at p. 1302.)
We also agree with Timms that “[t]he Legislature had a rational basis for not allowing voluntary intoxication to serve as a defense in an implied malice case…. [T]he Legislature deemed it confusing, in a vehicular homicide case, to allow evidence of voluntary intoxication to aggravate as well as to mitigate the offense. More fundamentally, by withholding voluntary intoxication as a defense to implied-malice murder, the Legislature bolstered the deterrent effect of section 22 by underscoring the long-standing principle in California law that voluntary intoxication is no excuse for crime.” (People v. Timms, supra, 151 Cal.App.4th at p. 1302.)
The trial court did not err in excluding evidence of voluntary intoxication as a defense to the crime of implied-malice murder.
IV. Exclusion of Voluntary Intoxication Evidence on the Question of Motive
Defendant asserts that the trial court improperly excluded evidence of voluntary intoxication on the question of his motive. Defendant argues that because motive is not an element of murder, a statute that redefines the mental element of implied-malice murder to exclude evidence of voluntary intoxication would not bar evidence of voluntary intoxication offered to prove or disprove motive. Defendant claims that his defense was that he was operating in a dissociative state of mind and was not consciously thinking about anything; thus he did not have the motivations [avoiding arrest and being incarcerated for a violation of probation] that the prosecutor attributed to him. He contends evidence of his voluntary intoxication would have supported that defense.
Defendant argued prior to trial that evidence of voluntary intoxication [methamphetamine] was relevant to show what he was thinking at the time he evaded the police and crashed and was necessary to rebut the prosecution’s argument that he was motivated by his desire to avoid being taken back into custody. He argued that in order for the jury to understand what he was thinking at the time of this incident, the jury had to hear about the effect that the use of methamphetamine had upon his thought process. The court excluded the evidence.
Defendant’s argument runs counter to the substantive rule of law in section 22 imposing equal criminal liability upon inebriated and sober persons and precluding reliance upon voluntary intoxication for defense purposes. (People v. Timms, supra, 151 Cal.App.4th at p. 1300.) Defendant was allowed to testify that he drove on “auto pilot” and did not remember thinking about looking for other cars. He testified that it did not cross his mind that his conduct might hurt someone. He was allowed to present his defense but was not allowed to rely on voluntary intoxication for defense purposes. The exclusion of evidence of voluntary intoxication did not run counter to section 22.
V. CALJIC No. 8.72
The jury was instructed pursuant to CALJIC No. 8.72 as follows: “If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or vehicular manslaughter with gross negligence you must give the defendant the benefit of that doubt and find it to be vehicular manslaughter with gross negligence rather than murder.”
Defendant contends CALJIC No. 8.72 is unconstitutional because the duty to give him the benefit of the doubt in making the determination of whether the crime is murder or manslaughter depends upon whether there is a unanimous agreement among the jurors. Defendant argues that this instruction somehow alleviates the duty of each juror to individually give him the benefit of reasonable doubt, even if the others do not agree.
The correctness of jury instructions is determined from the entire charge of the court. (People v. Burgener (1986) 41 Cal.3d 505, 538.) The jurors here were instructed pursuant to CALJIC No. 17.40 that a defendant is entitled to the individual opinion of each juror. The instruction states that each juror must decide the case for himself or herself. In addition the jury was instructed pursuant to CALJIC No. 17.50 that all 12 jurors must agree to the decision and that when the jury is polled each juror may state truthfully that the verdict expresses his or her vote.
Defendant acknowledges that a similar argument was rejected in People v. Pescador (2004) 119 Cal.App.4th 252 and the same argument was rejected in People v. Gunder (2007) 151 Cal.App.4th 412. In Gunder the court stated, “What is crucial in determining the reasonable likelihood of defendant’s posited interpretation is the express reminder that each juror is not bound to follow the remainder in decisionmaking. Once this principle is articulated in the instructions, a reasonable juror will view the statement about unanimity in its proper context of the procedure for returning verdicts, as indeed elsewhere the jurors are told they cannot return any verdict absent unanimity and cannot return the lesser verdict of second degree murder [here vehicular manslaughter with gross negligence] until the jury unanimously agrees that the defendant is not guilty of first degree murder [here second degree murder]. Thus, nothing in the instruction is likely to prevent a minority of jurors from voting against first degree murder [second degree murder] and in favor of second degree murder [vehicular manslaughter with gross negligence].” (Id. at p. 425.)
Appellate counsel in this appeal is the same counsel that raised this issue in Pescador and Gunder.
The entire charge to the jury made it clear that each juror must make his or her own individual determination of guilt. There was no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J., KANE, J.