Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08ZF0039, Carla Singer, Judge.
Law Offices of William J. Kopeny and William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
In the early morning of August 28, 2008, while under the influence of alcohol and without a driver’s license, then 17 year old defendant Milad Moulayi was driving his car at a speed in excess of 100 miles per hour when he lost control of the car. The car crossed over the center median and collided into objects, including signposts and a light signal pole before splitting in half. The back portion of the car, which contained the front seat and backseat, came to rest near a brick wall. Defendant’s passenger, 16 year old Mackenzie Frazee, did not survive. The jury found defendant guilty of second degree murder and driving a motor vehicle without a license; the trial court sentenced defendant to 15 years to life in state prison.
We affirm. We reject each of defendant’s contentions on appeal. Defendant’s constitutional rights were not violated when the trial court denied his request for a jury instruction on the lesser related offense of vehicular manslaughter pursuant to People v. Birks (1998) 19 Cal.4th 108, 136 (Birks). Defendant was not prejudiced by the admission of his prior conviction for driving without a license and the lecture he received from a juvenile court referee for engaging in such conduct. Defendant did not object at trial to the admission of evidence of his high school’s drinking and driving program entitled “Every 15 Minutes, ” and thus has forfeited the argument that evidence was erroneously admitted. Even if his argument had not been forfeited, defendant was not prejudiced by the admission of such evidence. Defendant has failed to make a showing of prosecutorial misconduct and defendant’s sentence for second degree murder does not constitute cruel or unusual punishment within the meaning of the California Constitution.
FACTS
Around 11:00 p.m. on August 27, 2008, defendant drove to his friend J.G.’s house to pick him up and drive him back to defendant’s house to hang out. Defendant and J.G. attended the same high school. When defendant arrived at J.G.’s house, J.G. saw 16 year old Mackenzie Frazee sitting in the front passenger seat of defendant’s car. After J.G. got into the car, he noticed defendant smelled like alcohol and was acting “loud and sloppy.”
J.G. knew that in the past, defendant had driven under the influence of alcohol. About a month earlier, J.G. had spoken to defendant about the dangers of drinking and driving. He warned defendant his behavior was dangerous and “should be stopped immediately.” He also told defendant he “probably was going to kill him[self] or someone else because he was known to drive drunk.” It appeared to J.G. that defendant “brushed the subject off” and did not seem to really think about what J.G. was telling him.
After the group arrived at defendant’s house, J.G. saw a bottle of rum and noticed “a little bit [of rum] out of it.” Defendant told J.G. that he had stolen the bottle of rum from a store earlier that day. Defendant stayed at his house for about 15 minutes and then left to pick up E.B., J.D., and P.D. During those 15 minutes, J.G. saw defendant drink “a lot of alcohol... [¶]... quick.”
Defendant drove to J.D.’s house and picked up J.D., E.B., and P.D. During the drive back to his house, defendant started speeding and causing the car to swerve. Defendant was talking about not having a driver’s license. J.D. and E.B. asked defendant a couple of times to pull over and let someone else drive. Defendant refused and said he was not going to pull over because it was his car. Defendant admitted he had been drinking when J.D. asked him to pull over; however, he said he did not care and “it was fine.”
P.D., J.D. and E.B. each testified that they were scared. They reached defendant’s house and discussed how defendant was “already drunk.” They agreed not to get into the car with him again and instead planned to walk home. They found J.G. and Mackenzie inside the house. Defendant started drinking from a bottle of rum; he used a shot glass and also drank directly from the bottle. He tried to pressure the others to drink and made fun of them for not drinking. J.G. was the only one who drank some alcohol.
Defendant was “hyper” and slurred his words. He acted “rude and... sexually aggressive” toward J.D. and E.B., making them feel uncomfortable.
When J.G. decided to walk home, defendant offered to drive him. J.G. told defendant he was “not getting in that car.” J.G. several times offered to walk Mackenzie home, but each time she said “no.” Mackenzie said that defendant would take her home later in the morning or that J.D. would get someone to take her home. J.G. left.
About an hour later, around 2:30 a.m., P.D., E.B., and J.D. decided to walk home. Defendant offered to give them a ride because driving would be faster. They rejected his offer, telling him they would not get in the car with him. They told him that he was drunk and it was not safe for him to drive. Defendant tried to force the issue, but they repeatedly told him they were not going in the car with him. J.D. told defendant: “You are drunk. Don’t drive. It won’t turn out good.” Defendant said he would be okay. J.D. asked Mackenzie to walk with them to J.D.’s house and E.B. offered to drive her home from there. Mackenzie did not accept their offers. She appeared “really kind of nervous” and anxious to get home.
After P.D., E.B., and J.D. saw Mackenzie get into the car with defendant, they walked down the driveway and hid in some bushes because they did not want to be hit by defendant’s car when he drove by. They observed defendant driving his car away “really fast.”
Defendant was driving approximately 110 miles per hour when he apparently lost control of his car. The car travelled across the center median, struck several signs, a utility box, and a water structure before striking a traffic signal pole. The car’s collision with the traffic signal pole caused the car to be cut in half. The back portion of the car, which included the front seat and backseat, came to rest near a brick wall. Mackenzie died from traumatic shock caused by blunt force trauma. Her external and internal injuries were extensive.
Officer Mark Hocevar of the Tustin Police Department responded to the scene where he found defendant lying on his back in front of the car. Defendant yelled, “I did this, I did this, did I kill her?” The passenger side door was missing. Hocevar could see a person between the vehicle seat and the wall. Defendant told Officer Allen Duarte of the California Highway Patrol that he had had “10 shots” and hit the curb while driving. Defendant displayed objective signs of intoxication; he had the odor of an alcoholic beverage on his breath and had red, watery eyes. He was placed under arrest and transported by ambulance to a hospital.
When asked if he was aware of the Every 15 Minutes program offered at his high school, defendant responded, “I guess I am another statistic.” He also stated he had not participated in the Every 15 Minutes program. Hocevar asked defendant whether he should have been driving that night. Defendant responded, “I had one too many and I don’t have a license.” After Hocevar asked defendant if he “drinks too much sometimes, ” defendant stated: “Oh, yeah, a lot of times.”
Defendant told Duarte that he had been in court the day before. During the afternoon of August 27, 2008, defendant and his mother had appeared in court to answer for defendant’s failure to complete courses required of him since he had been caught driving without a license. The presiding juvenile court referee lectured defendant on how driving “carries with it an intense amount of responsibility.” The referee addressed the seriousness of defendant driving without having learned how to drive responsibly—knowledge required before he would be issued a license. (The referee prohibited defendant from obtaining a driver’s license for 180 days.)
A sample of defendant’s blood was taken at 4:30 a.m. on August 28. Testing of the blood sample showed defendant had a blood alcohol concentration of.113. The prosecution and defendant’s counsel stipulated that “[i]t is unlawful for a person under the age of 21 years who has a 0.05 percent or more by weight of alcohol in his or her blood to drive a vehicle.” The autopsy conducted on Mackenzie’s body showed no alcohol was present in her blood.
PROCEDURAL BACKGROUND
On October 22, 2008, the Orange County Grand Jury returned an indictment accusing defendant of committing the felony offense of second degree murder, in violation of Penal Code section 187, subdivision (a) (count 1), and the misdemeanor offense of driving a motor vehicle without a valid license, in violation of Vehicle Code section 12500, subdivision (a) (count 2). The jury found defendant guilty on both counts as charged.
The court imposed a 15 year to life prison sentence on count 1; the sentence on count 2 was stayed pursuant to Penal Code section 654. Defendant appealed.
REQUEST FOR JUDICIAL NOTICE
Defendant filed a request for judicial notice asking that this court take judicial notice of 15 press releases purportedly published by the Orange County District Attorney’s Office, and two newspaper articles to show “defendants who commit DUI [(driving under the influence)] offenses resulting in more victims being killed or killed and injured, which defendants have a f[a]r worse driving record (i.e., have prior DUI convictions, or other more serious prior driving convictions), none of the defendants in cases to be judicially noticed were prosecuted for Watson murder, nor sentenced to life, whereas the juvenile defendant in this case, with no prior DUI convictions, no prior alcohol convictions, and only a driving without a license infraction on his record, was prosecuted for murder in the DUI single car accident that resulted in the death of a single victim.”
Evidence Code section 459, subdivision (a) provides that this court “may take judicial notice of any matter specified in Section 452.” Evidence Code section 452 provides: “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: [¶] (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. [¶] (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. [¶] (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. [¶] (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. [¶] (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. [¶] (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. [¶] (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. [¶] (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”
None of the materials that are the subject of defendant’s request for judicial notice falls within any of the categories set forth in Evidence Code section 452; defendant does not argue or present any analysis showing otherwise. We therefore deny defendant’s request.
DISCUSSION
I.
The Trial Court Did Not Err by Refusing to Instruct the Jury on Vehicular Manslaughter.
Defendant contends the trial court violated his constitutional rights by denying his request for a jury instruction on the lesser related offense of vehicular manslaughter. In the opening brief, defendant argues: “[Defendant] was charged with a form of murder that included, as a matter of fact use of a vehicle to cause the unlawful homicide. He and others charged with Watson second degree murder are denied the right to have the jury instructed that manslaughter is a lesser included offense of murder, that involuntary manslaughter is a lesser included offense of implied malice second degree murder, and that gross vehicular manslaughter is a lesser related offense to Watson murder, so that the jury will have the ability to evaluate whether or not implied malice has been proven beyond a reasonable doubt with a full and accurate appreciation of the full range of crimes shown by the evidence.”
People v. Watson (1981) 30 Cal.3d 290.
In Birks, supra, 19 Cal.4th at page 136, the California Supreme Court overruled People v. Geiger (1984) 35 Cal.3d 510, which held that a “defendant has a state constitutional right to instructions on lesser offenses that are not necessarily included in the stated charge” and that “instructions on lesser merely ‘related’ offenses can be given only upon the defendant’s request” (Birks, supra, at p. 112). The Supreme Court in Birks held, inter alia, “the California Constitution should not be construed to grant criminal defendants an affirmative right to insist on jury consideration of nonincluded offenses without the prosecutor’s consent.” (Id. at p. 136, italics added; see People v. Rundle (2008) 43 Cal.4th 76, 147 [“In Birks, however, we overruled the holding of Geiger that a defendant’s unilateral request for a related offense instruction must be honored over the prosecution’s objection”]; People v. Nelson (2011) 51 Cal.4th 198, 215 [same].) In People v. Nelson, supra, 51 Cal.4th at page 215, the Supreme Court stated, “[w]e have previously rejected an argument that the Birks rule violates the federal Constitution.”
In People v. Sanchez (2001) 24 Cal.4th 983, 985, the California Supreme Court held that the offense of gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. The Supreme 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. The use of a vehicle while intoxicated is not merely a ‘circumstance, ’ but an element of proof when the charge is gross vehicular manslaughter while intoxicated. Gross vehicular manslaughter while intoxicated is not merely a degree of murder, nor is it a crime with a lengthy pedigree as a lesser included offense within the crime of murder.” (Id. at p. 991.) The court further stated, “[a]lthough we recognize that historically manslaughter in general has been considered a necessarily included offense within murder, that long and settled tradition has not extended to the more recently enacted forms of vehicular manslaughter that require proof of additional elements.” (Id. at p. 992.)
As the California Supreme Court has held that vehicular manslaughter (whether committed with gross negligence or without gross negligence) is not a lesser included offense of second degree murder, defendant was not entitled to an instruction on vehicular manslaughter.
In the opening brief, defendant states: “Under the facts of this case, the jury would have been well within the evidence to convict [defendant] of gross vehicular manslaughter while intoxicated, or other forms of involuntary manslaughter involving a vehicle.” (Italics added.) Penal Code section 192 defines manslaughter as “the unlawful killing of a human being without malice” and subdivision (b) states that involuntary manslaughter involves “the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” Section 192, subdivision (b) also expressly provides: “This subdivision shall not apply to acts committed in the driving of a vehicle.” The trial court cannot be obligated to give an instruction on an offense for which there can be no conviction. (People v. Gurule (2002) 28 Cal.4th 557, 659.)
In the opening brief, defendant states, “[o]nly homicides committed with a vehicle are treated differently. Only persons charged with gross vehicular manslaughter while intoxicated, or with any other lesser form of vehicular manslaughter, are deprived of the right to have the jury choose between murder and manslaughter based on whether or not the jury is convinced that malice aforethought has been proved to the degree of beyond a reasonable doubt.” Defendant argues, “this fact deprived him of equal protection of the law, and of a fair trial because... in this situation, the jury is actually put to the choice of either convicting the accused of a murder he (arguably) did not commit, or of freeing him altogether.”
In People v. Rundle, supra, 43 Cal.4th at pages 147 148, the California Supreme Court stated: “As we discussed in Birks, there is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions. [Citation.] Further, except for the limited situation in a capital case in which the state has created an artificial barrier to the jury’s consideration of an otherwise available noncapital verdict, there is no federal constitutional right to instruction on lesser necessarily included offenses.”
Defendant has not offered any persuasive legal authority that the constitutional rights to equal protection and a fair trial require that an exception to the Birks rule be made in cases such as this one. Based on the California Supreme Court authorities cited, ante, a criminal defendant charged with second degree murder is not entitled to an instruction on vehicular manslaughter. We are bound by the decisions of the California Supreme Court and we follow them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial court, therefore, did not err by denying defendant’s request for such an instruction.
II.
The Trial Court Did Not Err by Admitting Evidence Defendant Had Been Convicted of Driving Without a License and of the Existence of the Every 15 Minutes Program at Defendant’s High School.
In the opening brief, defendant contends the trial court erroneously admitted evidence: (1) defendant “had been convicted of driving without a license and recently lectured by a judge and ordered not to drive without a license”; and (2) defendant’s high school participated in the Every 15 Minutes program because defendant did not attend that program. We address each of defendant’s contentions in turn.
A.
Evidence of Defendant’s Prior Conviction and the August 27, 2008 Hearing
In the opening brief, defendant argues, “[a]t trial, the jury heard that the Juvenile Referee admonished [defendant] that driving without a license could be dangerous because he did not know the rules of the road and one mistake could end another person’s life.” Defendant further argues: “Admitting this admonition was unfairly prejudicial to [defendant] in two ways: (1) it informed the jury of a prior driving offense, identical to Count 2—driving without a license; and (2) it constituted an assumption by the Juvenile Judge that [defendant] did not know the rules of the road, which was unsupported.”
We do not need to decide whether this evidence was improperly admitted because even if it was, defendant was not prejudiced. The admission of the evidence did not prejudice defendant as to his conviction in the instant case of driving without a license because undisputed evidence otherwise showed defendant committed that offense.
As to defendant’s argument the admission of such evidence constituted the unsupported assumption by the referee that defendant did not know the rules of the road, our response is: The evidence at trial established that defendant was aware of the dangers of drinking and driving but chose to engage in such conduct anyway. It is true that defendant’s knowledge of rules of the road aside from laws prohibiting drinking and driving (of which he was aware) is irrelevant and the suggestion by the referee that defendant might not know all the rules of the road is also irrelevant. But, as we have concluded, the admission of this evidence was not prejudicial.
Defendant argues the evidence showing that on August 27, a juvenile court referee had ordered defendant not to drive “allowed the jury to infer that somehow violating that court order added to the People’s case that this was murder, rather than something less serious.” Defendant’s argument is speculative. The jury was instructed on the elements of second degree murder and we must assume the jury followed the given instructions in reaching its verdict as to that offense. (People v. Cunningham (2001) 25 Cal.4th 926, 1014.)
B.
Evidence of the Every 15 Minutes Program
Defendant argues the trial court erroneously admitted evidence that the Every 15 Minutes program is staged periodically at defendant’s high school, which the prosecution offered to prove defendant’s implied malice by showing his awareness of the dangers of drinking and driving. Defendant did not object to the admission of this evidence at trial and thus has forfeited this argument. (People v. Neely (2009) 176 Cal.App.4th 787, 794.)
Even if defendant’s evidentiary argument is not forfeited, it is without merit because defendant was not prejudiced by the admission of that evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 9 10.) The prosecution presented evidence that at defendant’s high school, junior and senior high school students are taught about the dangers of drinking and driving through the Every 15 Minutes program in which participating students observe a staged crash scene of a drunk driving incident, visit the morgue, and act out the consequences of drinking and driving. The jury was also told that defendant never attended that program. The prosecution proved defendant’s implied malice by presenting evidence that defendant had driven drunk before, had been admonished by J.G. to stop his dangerous conduct, and chose to ignore P.D.’s, J.D.’s, and E.B.’s warnings not to drive because he was drunk and “it [wa]s not safe for him to drive” on the early morning of August 28, 2008. Even if evidence that defendant was aware of the Every 15 Minutes program was improperly admitted to prove implied malice, it was not prejudicial in light of the other evidence proving his implied malice in this case. We find no error.
III.
The Prosecutor Did Not Engage in Prosecutorial Misconduct.
Defendant contends the prosecutor engaged in “improper vouching conduct” which “took the form of leading jurors to believe the prosecution expert was a credible expert and the defense expert was not, and that he was retained to try to reach a particular conclusion that would help the defense, regardless of the evidence.” For the reasons we discuss post, we conclude the prosecutor did not engage in any prejudicial misconduct.
A.
Applicable Legal Principles and Standard of Review
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.) “‘“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.]”’” (People v. Ayala (2000) 23 Cal.4th 225, 284.)
“‘[I]n cases where jurors are improperly exposed to certain factual matters, the error is usually tested under the standard set out in People [v.] Watson (1956) 46 Cal.2d 818, 836.’” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323 1324.) Thus, reversal of a judgment of conviction based on prosecutorial misconduct is called for only when, after reviewing the totality of the evidence, we can determine it is reasonably probable that a result more favorable to the defendant would have occurred absent the misconduct. (People v. Bell (1989) 49 Cal.3d 502, 534; People v. Watson (1956) 46 Cal.2d 818, 836.) The Chapman v. California (1967) 386 U.S. 18 standard of harmless error applies when the prosecutor’s misconduct did not render the trial fundamentally unfair. (People v. Bordelon, supra, 162 Cal.App.4th at p. 1323.)
B.
The Record Does Not Show Prosecutorial Misconduct.
The prosecution and the defense each presented a traffic accident reconstruction analyst at trial. The prosecution’s expert witness testified regarding his reconstruction of how the collision occurred and concluded defendant’s precollision speed was approximately 110 miles per hour. Defendant’s expert witness testified that defendant’s precollision speed was roughly 85 to 95 miles per hour. He admitted, however, that a precollision speed of over 100 miles per hour was reasonably possible.
After the defense expert witness completed his testimony, the trial judge, the prosecutor, and defense counsel retired to the judge’s chambers for a sidebar. When the prosecutor returned to the courtroom, the prosecution’s expert witness informed her that after the defense expert witness left the stand, in the presence of the jury, he walked over to the prosecution’s witness to shake hands and appeared to thank the jury.
The trial judge, the prosecutor, and defense counsel discussed the defense expert witness’s conduct. The prosecutor expressed concern the defense expert witness shook hands with the prosecution’s expert to show the jury that he was credible because he was friendly with the prosecution’s expert and part of the traffic accident reconstruction analysts’ community.
The prosecutor called the prosecution’s expert as a rebuttal witness and asked him questions regarding defendant’s counsel; the following colloquy occurred:
“By [the prosecutor]: [¶] Q Sir, were you present yesterday when [the defense expert witness] concluded his testimony?
“A Yes.
“Q What happened after he concluded his testimony?
“A Once the court and the attorneys went—left the courtroom, [the defense expert witness] stepped down from the stand, addressed the jury
“[Defendant’s counsel]: Objection, Your Honor.
“The witness: —thanking them.
“[Defendant’s counsel]: That was not discussed in our sidebar.
“The Court: I’m going to overrule. [¶] Go ahead and finish your answer, please.
“The witness: And from that point, walked slightly into the well in front of the ‘petitioner’ sign, reached over, and shook hands with me.
“By [the prosecutor]: [¶] Q And you’d never met him before, right?
“A One on one, no.
“Q And during that 20 minute break, he never made any attempt to shake your hand?
“A No.
“Q But he did so in front of this jury?
“A Yes.
“Q And you said that you belong to numerous organizations and numerous entities in regards to the field of collision reconstruction; is that correct?
“A Yes.
“Q And you teach in your industry; is that correct?
“A Yes.
“Q Do you train law enforcement officers in the field of traffic reconstruction?
“A Yes.
“Q In any of the associations you belong to or the courses that you’ve either taken or taught, have you ever heard the methods used by [the defense expert witness] in this analysis being applied in the way that [the defense expert witness] applied them to reach his speed estimate?
“A No.
“Q Is that scientifically accepted and validated in your community?
“A What he did is not.
“[The prosecutor]: Thank you. Nothing further.”
This examination by the prosecutor of the prosecution’s expert witness did not constitute improper vouching by the prosecutor in favor of that expert. Instead, the prosecutor elicited testimony establishing the basis and credibility of the prosecutor’s expert’s testimony. It was reasonable for the prosecutor to be concerned that the defense expert witness’s conduct of shaking the prosecution’s expert witness’s hand under the circumstances was done to suggest some sort of relationship with the prosecution’s expert witness and to bolster the defense expert witness’s credibility. The prosecutor did not engage in misconduct by seeking testimony from the prosecution’s expert that clarified he had never before met the defense expert to dispel any inference of a preexisting relationship between the two. It was left to the jury to decide whether the defense expert witness’s conduct affected his credibility in any way. We find no error.
IV.
Defendant’s Total Prison Sentence of 15 Years to Life Does Not Constitute Cruel or Unusual Punishment Under the California Constitution.
Defendant argues his total prison sentence of 15 years to life imposed for his second degree murder conviction constituted cruel or unusual punishment within the meaning of the California Constitution. For the reasons we discuss post, we disagree.
Although it is the Legislature’s role to define crimes and proscribe penalties for them, all statutory penalties are subject to the constitutional prohibition against cruel or unusual punishments contained in article I, section 17 of the California Constitution. (People v. Dillon (1983) 34 Cal.3d 441, 450 (Dillon).) “[A] punishment is impermissible if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender.” (Id. at p. 450; see In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch) [punishment is cruel or unusual in violation of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity”].) Whether a punishment is cruel or unusual in violation of the California Constitution under the legal principles set forth in Lynch, supra, 8 Cal.3d at page 424, and Dillon, supra, 34 Cal.3d at page 478, “presents a question of law subject to independent review; it is ‘not a discretionary decision to which the appellate court must defer.’ [Citation.]” (People v. Felix (2002) 108 Cal.App.4th 994, 1000 (Felix).)
The reduction of a sentence based on the determination it is cruel or unusual under the California Constitution “‘is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.]” (Felix, supra, 108 Cal.App.4th at p. 1000.) Furthermore, such a reduction “‘“must be viewed as representing an exception rather than a general rule”’” and “‘[i]n such cases the punishment is reduced because the Constitution compels reduction, not because a trial court in its discretion believes the punishment too severe.’ [Citation.]” (Ibid.)
In Lynch, supra, 8 Cal.3d at pages 425 426, the California Supreme Court identified three “techniques” courts use to determine whether a punishment is disproportionate to the crime, which involve (1) the consideration of the nature of the offense and the offender “with particular regard to the degree of danger both present to society”; (2) the comparison of the punishment imposed with the punishments for more serious crimes in the same jurisdiction; and (3) the comparison of the punishment imposed with punishments for the same crimes in different jurisdictions. (See Dillon, supra, 34 Cal.3d at pp. 479 482.) A punishment need not be disproportionate under all three techniques to violate the California Constitution. (Id. at p. 487, fn. 38.)
“In assessing the nature of the offense, a court should consider the circumstance of the particular offense such as the defendant’s motive, the way the crime was committed, the extent of his involvement and the consequences of his acts.” (Felix, supra, 108 Cal.App.4th at p. 1000.) We conclude the sentence imposed was not cruel or unusual punishment in light of the nature of the charged offense. As to the nature of the offense, the extremely serious nature of second degree murder accomplished by driving a vehicle under the influence is most directly evidenced by the loss of life it caused.
The California Supreme Court has held that driving while under the influence of alcohol is an act dangerous to human life. “The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by th[e California Supreme C]ourt and the United States Supreme Court. [Citations.] As observed in Breithaupt [v.] Abram (1957) 352 U.S. 432..., ‘[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.’ [Citation.]... Given this setting, our observation that ‘[d]runken drivers are extremely dangerous people’ [citation] seems almost to understate the horrific risk posed by those who drink and drive.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262.) We conclude nothing in the nature of the offense or how it was committed allows reducing defendant’s sentence on the ground it would otherwise be cruel or unusual. (Felix, supra, 108 Cal.App.4th at p. 1001.)
Nor are we persuaded the 15 year to life prison sentence is grossly disproportionate to defendant’s individual culpability based on his personal characteristics. “In analyzing the nature of the offender, a court should consider his ‘age, prior criminality, personal characteristics, and state of mind.’” (Felix, supra, 108 Cal.App.4th at p. 1000.) Here, the evidence at trial showed defendant had been repeatedly warned about the danger posed to his own life and to the lives of others by his conduct of driving under the influence. A month before the charged offenses occurred, J.G. specifically admonished defendant to stop drinking and driving and warned him that his conduct would likely result in his death or the death of someone else. On August 27, 2008, defendant, while appearing to be under the influence, drove J.G. to defendant’s house. Defendant drank “a lot of alcohol” in J.G.’s presence before defendant drove to J.D.’s house and then drove J.D., E.B., and P.D. back to his house. Defendant refused J.D.’s and E.B.’s pleas that he pull the car over after they were frightened by his speeding and swerving.
J.G., P.D., J.D., and E.B. told defendant that they would not get back into the car with him that night. J.D. told him he was drunk, he “was not safe to drive, ” and that it would not end well. After trying to pressure his friends to allow him to drive them home, and notwithstanding his knowledge of the dangerousness of his conduct, defendant got behind the steering wheel with Mackenzie in the passenger seat of his car and sped away from his home. Minutes later, and after reaching speeds in excess of 100 miles per hour, defendant lost control of the car, crossed the center median, and struck numerous objects before striking a traffic light pole. Mackenzie did not survive. Under these circumstances, it is fair to consider defendant’s wrongful “conduct []as premeditated, not spontaneous.” (Felix, supra, 108 Cal.App.4th at p. 1001.)
We are not unmindful of the circumstances in the record showing this crime was committed by a 17 year old with a very limited criminal record. But the record also shows defendant had previously driven under the influence although he was first caught engaging in such activity on August 28, 2008. In any event, neither defendant’s age nor limited criminal record is determinative in a cruel or unusual punishment analysis.
In People v. Gonzales (2001) 87 Cal.App.4th 1, 17, one of the defendants argued his life sentence for murder was cruel or unusual in light of his age (14 years old) and his limited criminal history involving an arrest for vandalism and his running away from home. The appellate court rejected the defendant’s argument, stating: “While [the defendant]’s youth and incidental criminal history are factors in his favor, they are substantially outweighed by the seriousness of the crime and the circumstances surrounding its commission.... The lack of a significant prior criminal record is not determinative in a cruel and unusual punishment analysis. [Citation.] [The defendant] poses a great danger to society. Under the circumstances of this case, the sentence is not grossly disproportionate to the crime and does not constitute cruel and unusual punishment.” (Ibid.; see Felix, supra, 108 Cal.App.4th at p. 1001 [“The lack of a criminal record is not determinative in a cruel or unusual punishment analysis”].)
Defendant has failed to show that his punishment is disproportionate to the sentences imposed for similar offenses in California. In People v. Sanchez, supra, 24 Cal.4th 983, 986, the defendant was convicted of second degree murder for causing a death while driving under the influence of alcohol, and the trial court imposed a sentence of 15 years to life for that offense. Although the defendant did not challenge that portion of his sentence as cruel or unusual punishment, the California Supreme Court affirmed that portion of the judgment. (Id. at p. 993.) In People v Poroj (2010) 190 Cal.App.4th 165, 171, the trial court imposed a 15 year to life prison sentence which was not disturbed by the appellate court.
Defendant has not shown that his sentence imposes a disproportionate punishment as compared to the punishments imposed in other jurisdictions for the same offense, or as compared to the punishments imposed in California for offenses considered more serious than the instant offense, within the meaning of Lynch, supra, 8 Cal.3d at pages 426 427.
Notwithstanding the sad circumstances surrounding defendant’s conduct, the fact remains he deliberately decided to drive under the influence of alcohol, ultimately causing Mackenzie to lose her life. We cannot say the California Constitution compels the reduction of defendant’s sentence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.