Opinion
C041053.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMIL HOWARD, Defendant and Appellant.
Defendant, driving a stolen truck, fled from an officer. Failing to stop at a stop sign, he collided with another car, killing the four occupants of that car. Convicted by jury of four counts of second degree murder and sentenced to 15 years to life in state prison, defendant appeals. He asserts Californias law concerning second degree murder is void for vagueness, the jury was not properly instructed, and the prosecutor committed misconduct. We affirm.
FACTS AND PROCEDURE
Defendant went with a friend and stole a 1998 Dodge Ram pickup truck with a V-8 Magnum engine. On February 20, 2001, defendant drove the stolen truck to Stocktons Franklin High School, where he was a senior. When school ended, defendant agreed to give three girls a ride home — Teela Miller, Tasha Miller, and Reddisha Jit.
As defendant left the school parking lot, he failed to stop at a stop sign and drove in the wrong direction on a street. Officer Tim Kegarice of the Stockton Unified School District observed this behavior. He pulled his patrol car into traffic directly behind defendant and activated his overhead light. Instead of stopping, defendant accelerated to 50 miles per hour and continued down Oro Street. Tasha asked defendant to pull over.
Near the intersection with Washington Street where cars were ahead of him, defendant pulled into the parking lot of a grocery store. He weaved through the cars in the parking lot. Defendant exited the parking lot onto Washington Street and accelerated rapidly, faster than Officer Kegarice could accelerate.
Defendant turned left on Olive Avenue, continuing to increase the distance between himself and Officer Kegarice. Defendant told the girls to buckle their seatbelts because the truck was stolen and they were "going for a ride." The girls screamed for defendant to stop. Defendant disregarded the stop sign at Horner Avenue, going about 60 miles per hour, and approached Main Street.
Defendant ran the stop sign at Main Street, entering the intersection going about 50 to 60 miles per hour. Without braking, he hit an Oldsmobile that was traveling westbound on Main Street. The collision killed all four occupants of the Oldsmobile — 43-year-old Bernice Martinez, 16-year-old Christina Martinez, 14-year-old Ashley Martinez, and 14-year-old Desiree Guzman.
DISCUSSION
I
Constitutionality of Implied Malice Murder
Defendant contends implied malice second degree murder, defined in Penal Code sections 187 to 190, as interpreted by the California Supreme Court, is unconstitutionally vague because it is indistinguishable, as a practical matter, from vehicular manslaughter, defined in Penal Code section 192. The contention is without merit.
"Both article I, section 7, of the California Constitution and the Fourteenth Amendment to the United States Constitution declare that no person shall be deprived of life, liberty or property without due process of law. It has been recognized for over 80 years that due process requires inter alia some level of definiteness in criminal statutes. [Citation.] Today it is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal. Rptr. 145, 673 P.2d 732, fn. omitted.)
"Section 187, subdivision (a), provides that Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Under [Penal Code] section 188, malice may be express or implied, and implied malice is present when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (People v. Watson (1981) 30 Cal.3d 290, 295, 179 Cal. Rptr. 43, 637 P.2d 279.) "The requisite culpability for . . . vehicular manslaughter . . . is gross negligence [citation], which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.] Though these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. ( § 188; [citation].) [P] Furthermore, [the Supreme Court has] applied different tests in determining the required mental states of gross negligence or malice. A finding of gross negligence is made by applying an objective test: if a reasonable person in defendants position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (People v. Watson, supra, at pp. 296-297, italics in original.)
As can be seen from Watson, the California Supreme Court has held that the standards for determining the mental elements of gross negligence and implied malice are separate and distinguishable. Yet defendant contends: "Despite the Watson holding, the supposed distinctions between vehicular manslaughter and murder are illusory, and have diminished with time."
As defendant concedes, we are bound by precedents of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we are not at liberty to hold that the distinction between vehicular manslaughter and murder is illusory. Moreover, we agree with the high courts analysis.
Defendant asserts: "Every use of a motor vehicle is potentially dangerous to human life. And grossly negligent operation of a motor vehicle is always dangerous to human life. There is no difference between danger to personal safety and danger to human life. It is not possible to cause a vehicular collision serious enough to cause personal injury, and then claim that the driver expected a personal injury short of death. The forces involved, and the vulnerability of the human body, are too great to permit such a distinction."
The flaw in defendants argument is that, even though every use of a motor vehicle involves an abstract risk to life and limb, the manner in which the vehicle is used may increase the risk. When it reaches an objective level in which so slight a degree of care is exercised as to raise a presumption of conscious indifference to the consequences, a defendant may be prosecuted for gross vehicular manslaughter. When, in addition, the defendant has a subjective awareness of the specific risk involved in the way he is driving and the mental state is more culpable, involving an element of wantonness which is absent in gross negligence, a defendant may be prosecuted for implied malice murder. We disagree with defendant that this is a distinction without a difference or that it is void for vagueness. The existence of the crime of gross vehicular manslaughter does not preclude prosecution for murder when the circumstances reveal "more aggravated culpability." (People v. Watson, supra, 30 Cal.3d at p. 297.)
II
Jury Instructions
Defendant contends the trial court committed error when instructing the jury on implied malice murder and grossly negligent vehicular manslaughter. The contention is without merit.
The court instructed the jury consistent with CALJIC No. 8.31 concerning the elements of second degree murder as follows: "1. The killing resulted from an intentional act, [P] 2. The natural consequences of the act are dangerous to human life, and [P] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (See People v. Dellinger (1989) 49 Cal.3d 1212, 1221-1222, 264 Cal. Rptr. 841, 783 P.2d 200 [approving the "conscious disregard" language in CALJIC No. 8.31].)
Concerning the elements of gross vehicular manslaughter, the trial court instructed the jury consistent with CALJIC No. 8.90: "The driver of a vehicle committed with gross negligence an unlawful act, which under the circumstances of its commission was dangerous to human life, namely, a violation of Vehicle Code sections 22352(a)(2)(A), Speeding in Excess of the Prima Facie Speed Limit of 25 Miles Per Hour in a Residential District, Vehicle Code section 21802, Failure to Stop at a Stop Sign, or Vehicle Code section 23104, Reckless Driving; and [P] . . . The unlawful act was a cause of the death of another human being." The court defined "gross negligence" for the jury as "a negligent act which is aggravated, reckless or 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 contrary to a proper regard for human life or to constitute indifference to the consequences of such act." (CALJIC No. 3.36.)
Because reckless driving was one of the crimes presented to the jury in the gross vehicular manslaughter instruction, the trial court defined reckless driving as driving "with an intentional or conscious disregard for the safety of persons or property." (CALJIC No. 16.840.) The court added a clarification to the this mental state element, instructing: "The difference between this mental state and the necessary mental state for Murder in the Second Degree is that for Reckless Driving the conscious disregard is for the safety of persons or property. For Murder in the Second Degree, the conscious disregard is for the risk of death to human beings."
At the end of the instructions, the trial court commented on the different mental states for second degree murder and gross vehicular manslaughter: "There is a mental state that is required for Murder in the Second Degree that is not required for Vehicular Manslaughter with Gross Negligence. If a person causes anothers death by doing an act or engaging in conduct in a grossly negligent manner, without realizing the risk involved, he may be guilty of Vehicular Manslaughter with Gross Negligence. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, he may be guilty of Murder in the Second Degree." The court continued: "The difference between this mental state [for reckless driving] and the necessary mental state for Murder in the Second Degree is, for Reckless Driving, the conscious disregard is for the safety of persons or property. For Murder in the Second degree, the conscious disregard is for the risk of death to human beings."
Defendant claims the trial court failed to distinguish between murder and manslaughter. His argument centers on use of reckless driving as the predicate for gross vehicular manslaughter. Unlike exceeding the speed limit and failing to stop at a stop sign, reckless driving has a wanton or conscious disregard element — conscious disregard "for the safety of persons or property . . . ." (Veh. Code, § 23103, subd. (a).) Nonetheless, when the trial court told the jury, "If a person causes anothers death by doing an act or engaging in conduct in a grossly negligent manner, without realizing the risk involved, he may be guilty of Vehicular Manslaughter with Gross Negligence" (italics added), the statement was technically true because, of the three predicate crimes in the courts instruction, only reckless driving requires realization of the risk.
Defendants argument, however, is that, if gross vehicular manslaughter with reckless driving as the predicate crime requires a "conscious disregard for the safety of persons" and implied malice second degree murder requires a "conscious disregard for human life," then there is no difference between the two crimes. We rejected this argument, that implied malice murder and gross vehicular manslaughter are indistinguishable, in part I. (See People v. Watson, supra, 30 Cal.3d at p. 297.) Here, defendant attempts to turn it into an issue of instructional error. The trial court, however, instructed properly.
Defendant also claims the instruction concerning reckless driving violated his right to a fair trial because conviction for reckless driving requires a conscious disregard for human life, not just a conscious disregard for human safety as instructed by the court. The reckless driving statute, however, belies this contention. It states: "Any person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving." (Veh. Code, § 23103, subd. (a), italics added.)
We do not agree that "conscious disregard for the safety of persons" is the same as "conscious disregard for human life." The latter is merely a subset of the former. A person can drive a car with "conscious disregard for the safety of persons" without also having a "conscious disregard for human life."
In any event, any error in instructing concerning gross vehicular manslaughter was harmless. The instructions properly defined second degree murder, and defendant has made no argument that any element was misstated. Under those proper instructions, the jury convicted defendant of second degree murder. Furthermore, any misstatement concerning gross vehicular manslaughter was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 710-711, 87 S. Ct. 824].) The facts were more than adequate to sustain a conviction for implied malice second degree murder, and gross vehicular manslaughter is a lesser included offense.
III
Prosecution Argument
Defendant asserts he was prejudiced by misstatements the prosecutor made during closing argument to the jury concerning the difference between implied malice murder and gross vehicular manslaughter. We conclude there was no prejudicial misconduct.
"Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law [citation] . . . ." (People v. Bell (1989) 49 Cal.3d 502, 538, 262 Cal. Rptr. 1, 778 P.2d 129.) When, as here, "the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841, 938 P.2d 2.)
Defendant quotes numerous comments made by the prosecutor during closing argument. We focus only on those defendant specifically contends constituted misconduct.
A.
Defendant argues the prosecutor equated reckless driving to murder. Discussing the predicate crimes supporting a conviction for gross vehicular manslaughter, the prosecutor argued as follows:
"[Prosecutor:] Then you have one more, and Im a little — Ive got to be honest with you. Ive gonna [sic] look at this. Reckless driving, a misdemeanor. But the elements are almost the same. If you commit reckless driving, you can also be eligible for gross vehicular manslaughter, except theres only one problem. You cant have reckless driving here, because to have reckless driving here you have to have willful or wanton disregard, meaning an intentional — see, it says intentional. Hes got to read it to you. Intentional. Its got to be intentional. And then its gotta be with conscious disregard for the safety of persons. Well, thats here. So if its reckless driving, it should be murder.
"And youre going to hear this instruction. Youre going to have this to look at. Youre going to have this to hold, to interpret, using your common sense, to have vehicular manslaughter
"[Defense Counsel]: Objection, misstatement of the law.
"THE COURT: Sustained."
As we noted, the jury was instructed properly on the difference between implied malice murder and gross vehicular manslaughter based on reckless driving. The prosecutor was apparently confused and stated that, if there was reckless driving, the crime was murder. This is not so because the conscious disregard element of murder is for human life while the conscious disregard element for reckless driving is for the safety of persons. This was properly presented to jury in the courts instructions and defendants objection to the prosecutors misstatement of the law was sustained. The jury was also instructed that statements by counsel concerning the law were not controlling. Accordingly, there is no reasonable likelihood that the jury applied the prosecutors misstatement. (See People v. Samayoa, supra, 15 Cal.4th at p. 841.)
B.
Defendant complains that several comments made by the prosecutor concerning the requisite mental states "diminished the possible scope of the law of manslaughter . . . ." To the extent defendant did not object or request curative instructions, the point was not properly preserved. As to other comments to which defendants objection was sustained, the point is without merit.
Arguing that the evidence supported a conviction for murder, not just manslaughter, the prosecutor stated: "He didnt have a license and he didnt want the car tooken [sic] away. Thats not vehicular manslaughter. Thats disregard, conscious disregard, for the welfare of everybody." Defendant did not object to this statement or request the court to give the jury a curative instruction.
In further argument concerning the conscious disregard element of reckless driving, the prosecutor stated: "The reckless driving, its a conscious disregard for the safety of persons. Its kind of like your well-being, maybe your emotional state, but its not that risk of danger to life, death, okay, where the second degree is more of a conscious disregard for the particular fact that people may die." Defendant did not object to this statement and did not request a curative instruction.
Soon thereafter, the prosecutor commented on the two conscious disregard standards: "I can describe it in five words probably, awareness of the risk and total disregard versus an awareness of the risk and danger to life with total disregard." Defendant did not object or request a curative instruction.
Defendant did not preserve these comments for review because he did not object to them specifically and seek curative instructions. "In order to preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection at trial and request an admonition. [Citations.] In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.)
Defendant also asserts the following comment by the prosecution misstated the law as to vehicular manslaughter: "If you make a mistake on the road, you can be dead. And if you make one with conscious disregard for the safety of other people, youre liable for that accident. But its not an accident. Its a collision. Because you were liable for your conduct and thats why you have to distinguish. Negligence, a mere infraction of speeding. Negligence, the mere failure to stop at a stop sign." Defendant interposed an objection that this misstated the law, and the trial court sustained the objection.
According to defendant, this discourse meant that a mere infraction of speeding or failure to stop at a stop sign supported a manslaughter verdict. We are not at all sure that was what the prosecutor was saying. It was very unclear. In any event, the objection was sustained and, as we have noted, the trial court properly instructed on the law concerning gross vehicular manslaughter and told the jury that counsels comments concerning the law were not controlling. It is not reasonably likely the jury applied the wrong standard. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
C.
Defendant asserts the prosecutor improperly argued a felony murder theory because the prosecutor referred to the theft of the truck, which took place well before defendant killed the victims. We disagree with this assertion.
Concerning the time when defendant decided he would flee rather than submit to a traffic stop, the prosecutor argued: "You have the acceleration time. You have the turning of the corner time. Youve got more than 30 seconds on Olive Street. But thats not even the point, ladies and gentlemen, because thats not the time that [defendant] had to make his decision. Theres not 30 seconds for [defendant] to make his decision. [Defendant] made his decision two days prior when he stole that truck. [Defendant] made that decision two days earlier, a day and a half, when he stole that truck and drove it. [Defendant] made that decision at noon that day when hes driving around with a bunch of girls in that stolen vehicle. . . ." Later, in rebuttal, the prosecutor stated: "The awareness of the risk started a day and a half before when the truck was stolen. The awareness of the risk is knowing that youre driving a hot vehicle. The awareness of the risk of that vehicle and the potential for police officers and your decision-making process starts when you put that key in that vehicle and you hear that engine rev and you know its hot, and youre 18 years old driving this magnum missile. . . ."
Defendant did not object to these comments; however, later, in a motion for new trial, he cited these comments as misconduct. This procedure does not preserve the issue for review concerning whether the comments constituted prosecutorial misconduct. (People v. Gutierrez, supra, 28 Cal.4th at p. 1146 [requiring timely objection and request for curative instruction].) Furthermore, defendant does not assert on appeal that the trial court erred in denying the motion for new trial.
In any event, the comments did not constitute misconduct. As the trial court stated in denying the motion for new trial, the apparent significance of the argument is that defendant intended to flee rather than yield to a police stop and that he formed that intent when he stole the truck, not when he saw Officer Kegarice behind him. Defendant knew from the time he first drove the truck that he was driving a large and powerful vehicle. It is reasonable to infer that he calculated he could successfully flee from a less powerful patrol car. Furthermore, it is reasonable to infer defendant knew that such speed, combined with the size of the vehicle, would create a risk to human life.
We find implausible defendants argument that the prosecutors comments were directed toward the felony murder rule, that commission of a dangerous felony exposed defendant to murder liability until he reached a place of temporary safety. The jury was not instructed in this regard, and it certainly is not consistent with how a layman would interpret the prosecutors comments. Accordingly, there was no prosecutorial misconduct in this regard.
D.
Defendant asserts the prosecutor made comments about defendants lies and his defiant attitude on the stand that implied that defendant should be punished with a murder verdict. Since defendant did not object to these comments or request a curative instruction, the issue is not preserved for appeal. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1146.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and KOLKEY, J.
Charles Bonneau, who represents defendant here, was also defendants counsel in People v. Watson, more than 21 years ago.