Opinion
F075651
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER REY SOTO, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13901747)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Alexander Rey Soto was charged with multiple offenses stemming from two separate incidents in 2012 and 2013 when he refused to stop his vehicle for officers attempting to conduct a stop resulting in police pursuits, the second of which ended in a traffic collision, killing another motorist. Defendant was convicted by jury of murder (Pen. Code, § 187, subd. (a)) (count 1), assault upon a peace officer (§ 245, subd. (c)) (count 2), and evading an officer with willful or wanton disregard for safety (Veh. Code § 2800.2, subd. (a)) (count 4). In a bifurcated proceeding, the trial court found true that defendant suffered a prior felony conviction for evading an officer (Veh. Code § 2800.2, subd. (a)) and had served a prior prison term (§ 667.5, subd. (b)).
Unless otherwise noted, all subsequent references are to the Penal Code.
The jury found defendant not guilty on count 3, transport for sale of a controlled substance. (Health & Saf. Code, § 11379, subd. (a).)
The trial court sentenced defendant to an indeterminate term of 15 years to life for murder (count 1), enhanced by a one-year term pursuant to section 667.5, former subdivision (b); a term of five years, served consecutively, for assault on a peace officer (count 2); and a consecutive term of eight months for evading a police officer (count 4). The aggregate term of incarceration was six years eight months determinate, followed by one consecutive indeterminate term of 15 years to life.
On appeal, defendant claims the trial court erred when it excluded defendant's testimony about his state of mind during the 2013 incident, and he argues this error deprived him of his federal constitutional rights to due process, to present a defense, and to testify on his own behalf. The defendant also contends the trial court erred in refusing to instruct the jury on vehicular manslaughter as a lesser included offense within murder and that this error violated his federal constitutional right to present a complete defense.
The People respond the trial court properly precluded defendant from answering a leading question about defendant's state of mind, and the court properly declined to instruct the jury on vehicular manslaughter as it is not a lesser included offense of murder. The People also contend the trial court was not required to instruct the jury on the elements of vehicular manslaughter as part of defendant's defense theory.
We conclude that even if the trial court erred in precluding defendant from answering one question about his state of mind during the 2013 incident, the error was harmless. Additionally, we agree with the People that the trial court did not err in refusing to instruct the jury on vehicular manslaughter. Accordingly, we affirm the judgment.
FACTUAL SUMMARY
While driving a vehicle, defendant fled from police on three separate occasions in 2005, 2012 and 2013, resulting each time in high-speed police pursuits. While the 2005 and 2012 incidents resulted in little damage to property and no injury to any person, the 2013 police chase culminated in another motorist's death when defendant drove through a red light at a high rate of speed and collided with another vehicle passing through the intersection. Defendant's evasion of officers in 2005 resulted in a conviction when defendant pleaded guilty to evading officers in violation of Vehicle Code section 2800.2. Defendant's two separate attempts to evade officers in 2012 and 2013 were charged separately, but the cases were consolidated and tried together. The consolidated information charged defendant with three counts in connection with the 2013 chase: murder pursuant to section 187, subdivision (a); assault upon a peace officer under section 245, subdivision (c); and transport for sale of a controlled substance under Health and Safety Code section 11379, subdivision (a). In connection with the 2012 chase, defendant was charged with a single count of evading an officer in willful disregard for safety of persons or property under Vehicle Code section 2800.2, subdivision (a).
Relevant to the murder charge and establishing malice, the evidence at trial included testimony and documents related to defendant's prior conviction for evading officers in 2005 and testimony about whether defendant was aware of the danger to human life his evasion of officers in 2005, 2012 and 2013 posed. The evidence presented at trial regarding these three police pursuits is summarized below.
Defendant was acquitted on count 3 for the crime of transport for sale of a controlled substance under Health and Safety Code section 11379, subdivision (a). Facts relevant to count 3 have been omitted.
I. Evidence Relevant to Implied Malice: 2005 Car Chase
On July 6, 2005, California Highway Patrol (CHP) Officer Axel Reyes received information from dispatch that a bail bondsman was following a known felon—later identified as defendant—in his car, and the bondsman requested CHP to intercede and make a stop of the vehicle. When Reyes located defendant driving the white Acura reported by the bail bondsman, Reyes engaged his vehicle lights and activated the sirens. Defendant did not stop, however, and sped away at approximately 90 miles per hour (mph). In attempting to evade Reyes, defendant exceeded posted speed limits, including those in residential areas, and traveled through red lights and stop signs without stopping his vehicle, which caused other vehicles to swerve and brake abruptly to avoid collisions. During the pursuit, Reyes's vehicle overheated, and he was forced to drop out of the pursuit to obtain a different car. After rejoining the pursuit, Reyes and other patrol units pursued defendant to the parking lot of an old hospital where defendant stopped his car and surrendered. Defendant was taken into custody without incident. The pursuit lasted approximately 25 minutes and covered about 30 miles.
Defendant was prosecuted and ultimately pled guilty to evading a peace officer. In the process of preparing a report for defendant's sentencing, Probation Officer Cindy Carender interviewed defendant, who told Carender he was glad nobody was hurt and that he would not "ever run from the cops again." During defendant's sentencing, he stated he was "sorry to the Highway Patrol and I'm glad nobody got hurt." The court admonished defendant as follows: "You need to understand, though, the Court cannot condone this type of conduct. It created a danger to the law enforcement officers engaged in this case, put the entire public at danger because of your actions...." Defendant was sentenced to prison for two years for violation of Vehicle Code section 2800.2, subdivision (a).
II. September 2012: Second Car Chase
Approximately 6:00 a.m. on September 8, 2012, Fowler Police Officer Keith Berry, while on duty and driving a marked police vehicle, pulled up to a four-way stop intersection at the same time as defendant. Berry waived to defendant several times motioning him to proceed through the intersection, and when defendant did not attempt to move, Berry then flashed his search light, again indicating defendant should proceed through the intersection. When defendant did not move, Berry pulled alongside defendant's car so that their driver-side windows were lined up. Speaking through their open windows, defendant indicated Berry had the right-of-way, so he had not proceeded. Defendant appeared possibly under the influence to Berry, and he told defendant to pull over so he could talk with defendant; Berry proceeded to make a U-turn behind defendant's vehicle, but defendant accelerated and left the intersection at a high rate of speed.
Defendant testified he could not recall Berry telling him to pull over.
Defendant then sped past a stop sign without stopping his vehicle, and Berry engaged his vehicle's lights and sirens. A chase ensued wherein defendant, exceeding the posted speed limits, drove through multiple intersections without stopping at posted stop signs or red stop lights and, in once instance, crossed over the dividing line into opposing traffic. On a non-freeway surface street, defendant turned off his vehicle's headlights in an effort to elude Berry. Defendant proceeded onto northbound Highway 99, driving at speeds near 90 mph, flashing his headlights at other vehicles so they would move out of his way. When Berry was able to pull his vehicle close enough to defendant to read defendant's license plate, Berry terminated the pursuit. A felony complaint against defendant was filed in October 2012.
Berry testified the pursuit was terminated at the Chestnut Avenue exit in the city of Fresno because both Fowler police units pursuing defendant were the only units patrolling the city of Fowler at that time.
III. February 8, 2013: Third Car Chase
On Friday, February 8, 2013, CHP Officer Daniel Sanchez and Fresno Police Officer Luis Carrillo were partnered together, riding in Sanchez's marked CHP patrol car as part of a specialized multi-agency unit. At approximately 9:57 p.m., Sanchez and Carrillo stopped at an intersection for a red light and saw a white SUV parked oddly at a gas station adjacent to the intersection; they observed defendant near the vehicle and peering into the gas station's windows. Suspicious of his behavior, the officers shown their vehicle spotlight on defendant, and he immediately jumped into the SUV and proceeded to exit the gas station parking lot. The officers proceeded through the intersection, pulled over and waited for the SUV to pass them, at which time Sanchez engaged his vehicle's overhead lights. Defendant failed to stop and Sanchez engaged his sirens. Defendant did not pull over and instead sped to 50 or 60 mph—above the posted speed limit of 40 mph—and began traveling through multiple red lights without stopping. A chase ensued.
As the chase progressed, defendant continued to exceed the speed limit, failed to stop at multiple red lights and, at one intersection, turned into oncoming lanes of traffic. When defendant drove over the raised median to correct his vehicle position, he nearly collided with the officers' vehicle. A few intersections later, defendant turned in an unexpected direction and made contact with Sanchez and Carrillo's vehicle.
Defendant continued driving through residential neighborhoods, failed to stop for any stop sign and maintained speeds of 50 to 60 mph. Defendant turned off his vehicle headlights to evade officers, after which a spike strip was deployed in an effort to damage defendant's tires and slow the chase. CHP Sergeant Salcido took over as primary when Sanchez's car began malfunctioning due to the collision with defendant's vehicle. Meanwhile, defendant continued to flee at speeds of 70 to 80 mph, swerved into opposing lanes of traffic while taking a turn too quickly, sped through a shopping center, failed to yield for a pedestrian in a crosswalk and ignored stop signs and red lights. Once he passed the shopping center, defendant reached speeds of 70 to 80 mph while blowing through red lights.
When defendant reached the intersection of Bullard and Chestnut, the light was red for defendant; defendant barreled into the intersection at over 80 mph and collided with a vehicle in cross traffic. Defendant's SUV spun out of control, came to a stop next to a fenced agricultural area, and defendant exited his vehicle, jumped the fence and fled; officers apprehended defendant in the adjacent field, and he was taken into custody. Mark Bourdase, the driver of the other vehicle with whom defendant collided, was rushed to Community Regional Medical Center where he presented with multiple injuries, including traumatic brain injury. Bourdase died eight days later as a result of injuries from the crash. A felony complaint was filed on February 22, 2013.
IV. Defendant's Testimony
A. Evading Officers in 2005
Defendant testified a marked police vehicle attempted to pull him over on Highway 168 near Fresno, but he refused to stop and continued at speeds up to 80 mph until he exited the highway; he traveled through residential neighborhoods at 30 to 40 mph, failed to stop at red lights and stop signs and finally stopped his car in an old hospital parking lot. Defendant acknowledged he was sentenced to prison as a result of the incident, and at the time of his sentencing, he remembered saying he was glad no one was hurt. Defendant further admitted he had told a probation officer who interviewed him before his 2005 sentencing that he would never run from the police again, and acknowledged he said that because he knew it was dangerous to run from the police.
B. Evading Officers in 2012
Defendant testified he was not in his "right state of mind" during the 2012 chase because he had been using methamphetamines. Defendant admitted he drove away from the intersection after his interaction with Berry, but did not recall the officer telling him to pull over. Defendant admitted to driving 40 to 50 mph on surface streets with a posted speed limit of 25 mph, failing to stop for stop signs, driving in an oncoming lane of traffic, blacking out his vehicle lights in an attempt to evade the officer and, upon entering the highway, speeding up to 80 mph until Berry terminated his pursuit near the city of Fresno. When asked on cross-examination if he "knew the whole time that the behavior that [he was] engaging in was dangerous to human life," defendant answered, "[c]orrect."
C. Evading Officers in 2013
On both direct and cross-examination, defendant admitted that during his attempt to evade officers in his vehicle he failed to stop for numerous stop signs and red lights at various intersections, drove into oncoming traffic on Shields Avenue, drove 40 to 50 mph in residential neighborhoods where the speed limit was 25 mph, drove 60 to 70 mph on streets with speed limits of 40 to 50 mph, collided with a law enforcement vehicle on Andrews Street, and blacked out his vehicle lights in an attempt to evade officers.
Defendant also testified about his state of mind during the February 2013 pursuit. At the point of the pursuit where defendant had crossed into oncoming traffic on Shields Avenue, defense counsel asked, "[W]hat's going through your head at that time?" Defendant responded, "I'm thinking I shouldn't be on this side of the road" and that "I need to find a place to pull over or, you know, I need to get on the right side of the road." Defendant testified that when he saw vehicles coming at him in the oncoming lane of traffic he was "thinking that [he needed] to get on the right side of the road. So what I did, I immediately got over to the right side of the road with proper traffic that I was supposed to be going with." Defendant explained he was "trying to be careful so [he] wouldn't cause an accident" and that he "didn't want to hit" any other vehicles. Defense counsel again asked defendant what was going through his mind when he was near the intersection of Maroa and Shields Avenues, and defendant responded, "I'm, like, I didn't even do anything at first, so I'm thinking to myself, 'Why are they really after me? Like, what did I do?'" As defendant testified about hearing a noise when the spike strip was deployed, defense counsel asked why he was not stopping his car at that point. Defendant responded that he was just trying to get away from the officers. Defense counsel then asked, "When you say that you're thinking about just trying to get away from the officers, you're going, by your description, 50, 60 miles per hour south down Palm. Are you thinking at this point that someone can be hurt?"
The prosecution objected on relevance and leading grounds, and the court sustained the objection, instructing defendant he could not answer the question. Defense counsel then rephrased the question: "I'm going to ask you, when you say that you're just trying to get away, are you thinking anything else?" Defendant answered, "Well, trying to find an area to pull over."
Defendant further testified he went through an area near a mall and explained he knew "it's busy right there, so I'm trying to avoid an accident ...." Defendant admitted the chase ended when he hit a vehicle at the intersection of Bullard and Chestnut; he testified he was in shock and ran from the car because he was not in his "right state of mind" as he had been using methamphetamines a few hours before the chase began.
On cross-examination, defendant acknowledged more than 10 times he knew at the time he was evading officers his driving conduct was generally dangerous behavior and also admitted he knew at the time it was specifically dangerous to human life, but he chose to engage in the conduct anyway.
DISCUSSION
I. Exclusion of Testimony
A. Background
The defense theory to the murder charge against defendant was centered on the premise defendant was not subjectively aware of the risk to human life that his conduct posed in fleeing from officers in February 2013 such that he consciously disregarded that risk. Defendant argues it was error for the trial court to exclude his answer to a question during his direct examination about what he was thinking at a particular moment during the 2013 chase, which was relevant to his lack of awareness of the risks associated with his conduct.
Specifically, defense counsel asked the following set of questions during defendant's direct examination:
"[DEFENSE COUNSEL:] Okay. And at this point when you're on Palm in the time frame of hearing the noise, why aren't you stopping your car at this point?
"[DEFENDANT:] Because I'm just trying to get away from the officers.
"[DEFENSE COUNSEL:] When you say that you're thinking about just trying to get away from the officers, you're going, by your description, 50, 60 miles per hour south down Palm. Are you thinking at this point that someone can be hurt?"
The prosecution objected to the second question on grounds of relevance and leading, which the court sustained and told defendant, "You can't answer that question." Defendant argues whether he was thinking anyone could be hurt by his driving during the 2013 chase is relevant to whether he had the requisite mental state for implied malice. He also contends his federal constitutional rights to due process, testify on his own behalf and present a complete defense were violated by the trial court's preclusion of this specific testimony as defendant's mental state was the central factual dispute in the case.
The People do not respond to defendant's argument as to relevance, but instead argue the objection was properly sustained as leading. Moreover, according to the People, even if the objection was not properly sustained, evidentiary error does not implicate the federal Constitution, and any error was harmless under state law.
Defendant responds the question was not leading because it was posed in a neutral manner and, even if it were leading, the interests of justice favor allowing this specific question because it was the only way to elicit testimony about whether defendant acted with the requisite subjective awareness of the risk to life his conduct posed. Further, the error violated his state and federal constitutional rights, and it was prejudicial because it prevented him from testifying about his mental state at the time of the charged offense.
B. Legal Standard
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Kopatz (2015) 61 Cal.4th 62, 85; People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) "'[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)
C. Analysis
1. Evidentiary Ruling
The defense theory advanced was that defendant had not acted with implied malice during the 2013 chase—he was not subjectively aware of the risk to human life at the time. "Malice is implied when the killing is proximately caused by '"an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."' [Citation.] In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another ...." (People v. Knoller (2007) 41 Cal.4th 139, 143 (Knoller).)
Relevant evidence is that "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) To be admissible, evidence does not need to be significant or definitive. (People v. Bivert (2011) 52 Cal.4th 96, 116.) "'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]'" (Id. at pp. 116-117, quoting People v. Garceau (1993) 6 Cal.4th 140, 177.) Defendant's subjective knowledge about the dangerousness of his conduct is relevant to the implied malice element of the murder charge. If defendant was not thinking that anyone could be hurt during the course of the chase, a reasonable inference could be drawn that defendant did not, therefore, believe or subjectively know that his conduct was dangerous to human life. While the question was not directly aimed at eliciting whether defendant was subjectively aware his conduct endangered human life, it inquired about defendant's subjective thoughts during the chase from which reasonable inferences could be made about his subjective awareness of the danger his conduct posed. The testimony was not inadmissible on relevance grounds.
Relevant evidence may be excluded under Evidence Code section 352 if "its probative value is substantially outweighed by the probability that its admission will" either "necessitate undue consumption of time" or "create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." However, the record does not reflect the trial court excluded the testimony on any basis under section 352, nor do the People argue the objection could have been sustained as not relevant.
The prosecution's objection at trial also raised "leading" as a basis for excluding defendant's response to the question, which the People maintain was correctly sustained by the trial court. Evidence Code section 767 provides that, "[e]xcept under special circumstances where the interests of justice otherwise require[,] ... [a] leading question may not be asked of a witness on direct or redirect examination ...." "A 'leading question' is a question that suggests to the witness the answer that the examining party desires." (Id., § 764.) "Questions calling for a 'yes' or 'no' answer are not leading unless they are unduly suggestive under the circumstances." (People v. Harris (2008) 43 Cal.4th 1269, 1285.)
While the question defense counsel posed to defendant required a "yes" or "no" answer, both the context of the question and the way it was phrased were not especially suggestive of a particular answer. The question was neither prefaced with an invariably leading phrase such as "isn't it true," nor was the question posed in a manner that supplied a suggested answer—e.g., "You're not thinking at this point anyone can be hurt, are you?" Instead, the question summarized defendant's previous statement that he was thinking about "just trying to get away from the officers" at that point in the chase and that defendant had said he was driving 50 or 60 mph on Palm Avenue, which the jury had heard in prior testimony was over the speed limit. The defense then followed this summary of defendant's prior testimony with the question, "Are you thinking at this point that someone can be hurt?" Given that context, the question does not appear to be unduly suggestive of only one possible answer and does not appear to be a particularly leading question. For the reasons discussed below, however, even assuming the question was neither leading nor irrelevant, any error by the trial court in sustaining the prosecution's objection was harmless.
Officer Carrillo testified that near the intersection of Palm and Clinton Avenues where defendant was driving, the speed limit was 40 miles per hour.
2. No Federal Constitutional Right Was Violated
Defendant argues the trial court's exclusion of this specific testimony violated his Fifth, Sixth and Fourteenth Amendment rights under the federal Constitution to testify on his own behalf and to present a complete defense. Thus, he maintains any harmless error test must be conducted pursuant to the standard articulated in Chapman v. California (1967) 386 U.S. 18, which applies when an error implicates federal constitutional rights.
However, "the routine application of provisions of the state Evidence Code law does not implicate a defendant's constitutional rights." (People v. Jones (2013) 57 Cal.4th 899, 957.) As such, "only evidentiary error amounting to a complete preclusion of a defense violates a defendant's federal constitutional right to present a defense." (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4.) Additionally, "the right to present relevant testimony" in one's own defense "is not without limitation." (Rock v. Arkansas (1987) 483 U.S. 44, 55.) "So long as the restrictions placed on a defendant's right to testify are not 'arbitrary or disproportionate to the purposes they are designed to serve,' a court may apply a rule of evidence to limit a defendant's testimony if 'the interests served by [the] rule justify the limitation imposed on the defendant's constitutional right to testify.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 822, quoting Rock v. Arkansas, supra, at p. 56.) Excluding defendant's answer to one question about whether he thought anyone could be hurt at a particular time during the 2013 chase was not tantamount to a complete preclusion of his defense, nor did it interfere with defendant's right to testify on his own behalf.
During defendant's direct examination, defense counsel asked several times what defendant was thinking at various points in the 2013 car chase. In response, defendant testified about what he was thinking when he drove into oncoming traffic on Shields Avenue, what he was thinking when he saw vehicles coming at him, and what he was thinking as he crossed back over the median into the correct lane of traffic. Defense counsel asked what was "going through [defendant's] mind" when he arrived at another intersection, and defendant testified he was wondering why the police were after him. Later, after the court sustained the prosecutor's objection to the question about what defendant was thinking while driving on Palm Avenue, defense counsel rephrased his question to ask whether defendant was "thinking anything else" at this time. In closing argument, defense counsel again addressed defendant's state of mind and his asserted lack of awareness of the risks of his behavior. In sum, defendant had multiple opportunities to testify about his thoughts and his subjective state of mind during the 2013 chase, and defense counsel was able to address this matter in closing argument.
Defendant contends that while he may have been able to testify about what he was thinking generally, after the objection to his counsel's question was sustained, the trial court specifically instructed defendant, "You can't answer that question." Defendant was left with the impression he was entirely precluded from testifying about whether he was thinking anyone could be hurt, and defendant believed this preclusion applied no matter how the question was reframed.
People v. Thornton (2007) 41 Cal.4th 391, 442-443 is instructive. In Thornton, the trial court excluded a videotape offered as mitigation evidence on the ground that it was hearsay evidence, which offered opinions that were not subject to cross-examination. (Id. at p. 443.) On appeal, the California Supreme Court rejected the defendant's argument the exclusion of the videotape violated his federal constitutional right to present a defense. (Id. at p. 444.) The court noted that while the videotape was excluded in its entirety, nothing had prevented the defendant "from presenting evidence consistent with the normal rules of evidence through live witnesses who are subject to cross-examination." (Ibid.)
The same is true here. Whether defendant thought anyone could be hurt may be relevant, but it is not the essential mental component of implied malice, which requires that an actor knows his conduct is dangerous to human life. (Knoller, supra, 41 Cal.4th at p. 156 [malice requires proof that a defendant acted with conscious disregard of the danger to human life; simple awareness of causing serious bodily injury is not sufficient].) Thus, even assuming the court's admonition led defendant to believe he was entirely precluded from testifying about whether he thought anyone could be hurt, defendant was not precluded from answering different and more specific questions about his subjective awareness (or lack thereof) of the dangers to life his driving presented at the time. That the defense did not pursue different questions about defendant's awareness of the dangers to life his conduct posed does not mean he was precluded from doing so in the same way Thornton was not precluded from presenting live witness testimony—that one is not prepared or chooses not to present certain evidence in an admissible form is not the same as being precluded from doing so. (See Thornton, supra, 41 Cal.4th at pp. 443-444.) And, prior to the objection, defendant had been able to testify several times about what he was thinking at various points in the chase. (People v. Gutierrez, supra, 45 Cal.4th at p. 822 [evidentiary restriction on the defendant's testimony as to one aspect of a past event did not interfere with the defendant's right to testify on his own behalf].) The exclusion of one answer to a question was not a complete preclusion of defendant's right to present his defense nor did it constitute a violation of his right to testify on his own behalf; defendant's federal constitutional rights were not implicated by the trial court's exclusion of this portion of defendant's testimony.
3. Any Error Was Harmless
As this exclusion of testimony did not violate defendant's federal constitutional rights, any error by the trial court in excluding defendant's answer to a single question was one of state law only. (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Thus, the applicable harmless error standard is whether it is reasonably probable defendant would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Under this standard, we conclude any error in excluding this testimony was harmless.
Even assuming defendant testified he was not thinking anyone could be hurt while he was driving on Palm Avenue, it is not reasonably probable the jury would have returned a more favorable verdict. During his cross-examination, defendant admitted multiple times he knew when he was fleeing from officers in 2013 that his driving was dangerous to human life and acknowledged that despite knowing this, he engaged in the conduct anyway. The jury also heard defendant acknowledge he had been convicted of evading officers in 2005 after leading them on a 30-mile, high-speed car chase and that the judge who sentenced him for that offense expressly warned him of the dangerousness of this conduct; defendant also admitted he knew at the time of his 2005 sentencing his evasion of officers had been dangerous to human life. Defendant also admitted he told a probation officer in advance of sentencing that he would never run from the police again, and he confirmed he said that because he knew the conduct was dangerous.
Based on all the evidence before it, it is clear the jury reached the overwhelming conclusion that defendant, at the time of the 2013 car chase, knew his driving in a manner to evade officers (which, according to trial testimony, included high speeds, blacking out his vehicle's lights, failing to stop for multiple red lights and stop signs, speeding through residential areas, and driving into oncoming lanes of traffic) was dangerous to human life, but despite this knowledge he engaged in the conduct anyway. Any error in excluding his testimony about what he was thinking while driving on Palm Avenue was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
II. Instructional Error
A. Background
At trial, defense counsel asked the court to instruct the jury on the elements of vehicular manslaughter (§ 192, subd. (c)) as a lesser included offense of murder based on evidence defendant did not consciously disregard the danger to human life while fleeing from law enforcement in 2013. The prosecution objected, and the trial court declined to give the requested instruction finding vehicular manslaughter was not a lesser included offense of murder pursuant to People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez).
Defendant contends the failure to instruct on vehicular manslaughter violated state law and his federal constitutional right to present a complete defense. Specifically, defendant argues Sanchez only applies to gross vehicular manslaughter while intoxicated under section 191.5, but does not preclude vehicular manslaughter under section 192, subdivision (c) (section 192(c) or § 192(c)) from treatment as a lesser included offense of murder. Moreover, defendant maintains, as a lesser offense of murder, the failure to instruct the jury on the lesser offense created a serious risk of "'over-conviction,'" which infected the entire trial with unfairness and resulted in a deprivation of his federal due process rights.
The People maintain Sanchez clearly holds all vehicular manslaughter crimes require proof of an additional element not included in the crime of murder and, thus, cannot be considered lesser necessarily included offenses within murder. As a defendant may commit implied malice murder without necessarily committing vehicular manslaughter under section 192(c), the People argue the trial court was not required to instruct on vehicular manslaughter. We agree with the People.
B. Instructional Duty and Standard of Review
A trial court is required, even over a defendant's objection, to instruct on lesser necessarily included offenses of the charged offense "'"whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury."'" (People v. Prince (2007) 40 Cal.4th 1179, 1265.) This rule functions to ensure the jury considers "the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties," or by the fact that either party has chosen to focus on a particular theory. (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds by People v. Barton (1995) 12 Cal.4th 186, 200-201.)
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).) Thus, there are two methods for determining whether a lesser offense is necessarily included in a greater offense: the elements test and the accusatory pleading test. However, when "the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense." (People v. Robinson (2016) 63 Cal.4th 200, 207; see People v. Shockley (2013) 58 Cal.4th 400, 404 ["[B]ecause the information charging [the] defendant with lewd conduct simply tracked section 288[, subdivision ](a)'s language without providing any additional factual allegations, we focus on the elements test."].)
"An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
C. Historical Development of Vehicular Manslaughter
Since at least 1854, manslaughter has been considered a lesser included offense of murder. (See, e.g., People v. Gilmore (1854) 4 Cal. 376, 380.) Murder "is the unlawful killing of a human being, or a fetus, with malice aforethought," and it is divided into first and second degrees. (§§ 187, subd. (a), 188, 189.) Manslaughter is defined as "the unlawful killing of a human being without malice." (§ 192.) The difference between the two offenses is that murder includes the element of malice, but manslaughter does not. (People v. Rios (2000) 23 Cal.4th 450, 460.)
When the Penal Code was enacted in 1872, the crime of manslaughter was divided into only two kinds: voluntary and involuntary. (former § 192.) In 1945, the manslaughter statute was amended to include a third "kind"—that committed "[i]n the driving of a vehicle." (Stats. 1945, ch. 1006, § 1, pp. 1942-1943.) Vehicular manslaughter was defined as an unlawful killing without malice committed in the driving of a vehicle in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner. (Ibid.) Vehicular manslaughter was separated into two types—(1) that committed with gross negligence, or (2) that committed without gross negligence. (Ibid.) In September 1983, the Legislature again amended section 192 to differentiate between vehicular manslaughter involving drugs and/or alcohol and that which did not, ultimately codifying four different types of vehicular manslaughter—two types involving alcohol and/or drugs: one committed with gross negligence and the other without gross negligence; and two types not involving alcohol and/or drugs: one committed with gross negligence and the other committed without gross negligence. (Stats. 1983, ch. 937, § 1, pp. 3387-3388.)
Meanwhile, in 1981 the California Supreme Court held that, where the evidence supported it, a vehicular homicide could be charged not just as an offense under the manslaughter statute but also as second degree murder based on implied malice. (People v. Watson (1981) 30 Cal.3d 290, 296 (Watson I).) After Watson I clarified vehicular manslaughter could be charged as second degree murder, courts began grappling with whether vehicular manslaughter was a lesser included offense of murder.
In December 1983, a state appellate court expressly analyzed whether vehicular manslaughter under section 192 could be treated as a lesser included of murder. (People v. Watson (1983) 150 Cal.App.3d 313 (Watson II), disapproved by Sanchez, supra, 24 Cal.4th at pp. 990-991.) Watson II recognized murder could be committed "without the instrumentality of a vehicle" and, thus, it might be viewed as not necessarily included within murder. (Watson II, supra, at pp. 320-321.) The court observed, however, that while manslaughter is an offense necessarily included within murder, murder could be committed without the circumstances necessary to establish involuntary manslaughter—i.e., "'a misdemeanor inherently dangerous to human life'" or "'an act ordinarily lawful which involves a high risk of death or great bodily harm.'" (Id. at p. 321.) The court reasoned that because involuntary manslaughter was an offense necessarily included in murder, circumstances unique to involuntary manslaughter could not be elements for the purposes of evaluating included offenses; otherwise, involuntary manslaughter could not be a lesser included offense of murder. (Ibid.) The court concluded that "[a]gainst the background of firmly established decisional law, logic dictates that for purposes of necessarily included offense analysis, manslaughter be regarded as a single offense with separate subdivisions under section 192 merely defining the different circumstances under which an unlawful killing constitutes manslaughter, but not stating additional elements of the crime." (Id. at pp. 321-322.) As such, the court held the three subdivisions of section 192, including vehicular manslaughter, each defined a "species of a single crime of manslaughter" and that vehicular manslaughter is an offense necessarily included within murder. (Watson II, supra, at p. 323.) Other state appellate courts followed suit, recognizing vehicular manslaughter to be a lesser included offense of murder without analysis. (See, e.g., People v. Perez (1989) 212 Cal.App.3d 395, 399; People v. Brogna (1988) 202 Cal.App.3d 700, 706.)
In September 1986, the Legislature amended section 192, removing subdivision (c)(3), the type of vehicular manslaughter involving drugs or alcohol and committed with gross negligence, and redesignated the offense as newly created section 191.5. (Stats. 1986, ch. 1106, § 3, pp. 3881-3382.) Section 192(c) was simultaneously amended to include three subdivisions of vehicular manslaughter (1) "[e]xcept as provided in 191.5," committing vehicular manslaughter with gross negligence; (2) vehicular manslaughter committed without gross negligence; and (3) vehicular manslaughter involving alcohol and/or drugs but committed without gross negligence. (Ibid.)
In 1998, the Legislature again amended section 192(c) to add, among other changes, a fourth type of vehicular manslaughter: "Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person...." (Stats. 1998, ch. 278, § 1.) Then, in 2006, the Legislature amended section 192(c) to remove subdivision (3), which dealt with vehicular manslaughter involving drugs and/or alcohol committed without gross negligence and redesignated it with changes as section 191.5, subdivision (b). (Stats. 2006, ch. 91, §§ 1-2.)
In 1995, consistent with Watson II, another state appellate court concluded gross vehicular manslaughter while intoxicated under section 191.5, like those still codified under section 192(c), was a lesser included offense of murder. (People v. Garcia (1995) 41 Cal.App.4th 1832 (Garcia).) Garcia observed that all types of homicide "have circumstances added to the basic offense whether it is the premeditation or deliberation of first degree murder or the heat of passion of voluntary manslaughter. The point is that neither murder nor manslaughter nor gross vehicular manslaughter while intoxicated can be committed without committing an unlawful killing of a human being which is an unlawful homicide." (Id. at p. 1854.) The court explained murder can be committed without the heat of passion of voluntary manslaughter; "the additional circumstance of heat of passion is no different than that of intoxication or use of a vehicle as they relate to unlawful homicide." (Ibid.) Like Watson II, the court concluded the additional circumstances, like those involved in voluntary manslaughter, were not elements of the lesser offenses: "the specific crimes of murder, voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter are simply different circumstances under which a homicide is unlawful and bear upon punishment." (Garcia, supra, at p. 1855.)
In 2001, however, the California Supreme Court determined the practice of treating manslaughter as an offense necessarily included within murder could not be extended to gross vehicular manslaughter while intoxicated under section 191.5 because, "[u]nlike manslaughter generally, vehicular manslaughter while intoxicated requires proof of elements that are not necessary to a murder conviction." (Sanchez, supra, 24 Cal.4th at p. 991.) Sanchez had been convicted of both second degree murder and vehicular manslaughter while intoxicated and argued he could not be convicted of both offenses because vehicular manslaughter was a necessarily lesser included offense of murder. Sanchez pointed to California's long established tradition of treating manslaughter as a lesser included offense of murder and argued this should be extended to vehicular manslaughter as held in Garcia and Watson II. Eschewing a strict elements test to determine lesser included offenses, Sanchez relied on People v. Ortega (1998) 19 Cal.4th 686, 699 (Ortega), which held grand theft of an automobile was a lesser included offense of robbery, even though robbery could be committed without the taking of an automobile. The Ortega court noted the long settled recognition of theft as a lesser included offense of robbery and determined factors relating to the degree of theft, grand or petty, did not destroy theft's character as a lesser included offense of robbery. (Ortega, supra, at pp. 694-695, 696.) By analogy, the reasoning of Ortega was consistent with Garcia and Watson II—types or degrees of lesser offenses, even if requiring different circumstances like stealing automobiles or driving vehicles, were still considered lesser included offenses of the greater offenses.
The Penal Code divides theft into two degrees, grand theft and petty theft. (§ 486.) Section 487 defines "[g]rand theft" to include, among other things, theft of property worth more than $950 (id., subd. (a)) and the theft of an automobile (id., subd. (d)(1)). Several other statutes define certain forms of grand and petty theft (see, e.g. § 487a), and section 488, as a catchall, relegates theft in other cases to the degree of petty.
The majority in Sanchez rejected each of the defendant's arguments. First, the court expressly disapproved both Garcia and Watson II, concluding "these decisions stray too far from the general principle that an offense is necessarily included within a greater offense when the greater offense cannot be committed without committing the lesser offense." (Sanchez, supra, 24 Cal.4th at pp. 990-991.) In jettisoning the reasoning of Garcia, the court stated heat of passion and imperfect self-defense are not different elements necessary to establish an unlawful killing for voluntary manslaughter; instead, they are facts which tend to negate the malice element of murder, and when voluntary manslaughter alone is charged, they are not elements at all. (Id. at p. 991, citing People v. Rios, supra, 23 Cal.4th at pp. 462-463.) As such, the extra elements required for vehicular manslaughter could not be compared to the role of provocation and imperfect self-defense in voluntary manslaughter as Garcia had reasoned. (Sanchez, supra, at p. 991.)
Second, the court distinguished its Ortega decision, noting that unlike the degrees of theft, vehicular manslaughter is not a degree of murder—it is a crime that "requires proof of additional elements that are not included in the offense of murder or in other forms of nonvehicular manslaughter." (Sanchez, supra, 24 Cal.4th, at p. 992.) Distinguishing Ortega further, the court noted that even to the extent Ortega relied on the historical practice of treating all forms of theft as necessarily included within the crime of robbery, the "long and settled" tradition of manslaughter being considered a necessarily included offense of murder "has not extended to the more recently enacted forms of vehicular manslaughter that require proof of additional elements." (Sanchez, supra, at p. 992, fn. omitted.)
D. Analysis
Against this historical backdrop, we turn to consider whether vehicular manslaughter under section 192, subdivision (c)(1) (section 192(c)(1) or § 192(c)(1)) is a lesser included offense of murder. Defendant maintains Sanchez only applies to section 191.5 and not to the forms of vehicular manslaughter under section 192; he argues he was entitled to an instruction on vehicular manslaughter under section 192(c)(1) as a lesser necessarily included offense of murder. We do not agree.
1. Elements of Vehicular Manslaughter
Our lesser-included analysis focuses only on the elements test. The murder count against defendant in the consolidated information pleaded only the statutory definition and included no additional factual allegations; neither party asserts the accusatory pleading test applies.
Presently, the Penal Code defines five types of vehicular manslaughter, three of which are articulated in section 192(c), two are codified in section 191.5, subdivisions (a) and (b); section 192.5 extends and applies sections 192 and 191.5 to seagoing vessels. Each of the five types of vehicular manslaughter shares three common elements: (1) the unlawful killing of a human being without malice aforethought; (2) while driving a vehicle; and (3) in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act that might produce death in an unlawful manner or in connection with a violation of section 550, subdivision (a)(3). (Compare § 192 (c)(1)-(3) with §§ 191.5, subds. (a), (b) & 192.5.) Beyond these three shared elements, each of the five types of manslaughter also has one additional distinctive element and/or defines a requisite mental state or degree of care that sets each apart from the other types. For example, section 192(c)(1) requires the three shared elements and gross negligence. Gross vehicular manslaughter while intoxicated under section 191.5, subdivision (a), requires the shared three elements, but also requires intoxication and gross negligence.
Relevant to this appeal, we specifically consider vehicular manslaughter committed with gross negligence under section 192(c)(1). Vehicular manslaughter with gross negligence is defined as "driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 192(c)(1).)
2. Application of Sanchez and the Elements Test
Defendant's argument that Sanchez applies only to section 191.5 is based on two grounds: first, when Sanchez distinguished Ortega by noting the longstanding tradition of manslaughter as a lesser included offense of murder had not been extended to more "'recently enacted forms of vehicular manslaughter'" (italics omitted), this could only refer to section 191.5, which had not been codified until 1986, while vehicular manslaughter under section 192 had been enacted already by 1945; second, while the theft statute in Ortega is distinguishable from vehicular manslaughter in section 191.5, it is not distinguishable from vehicular manslaughter defined in section 192. Unlike section 191.5, vehicular manslaughter under section 192 is defined as one of the three "kinds" of manslaughter, just like the theft statutes at issue in Ortega defined different "degrees" of theft (see Ortega, supra, 19 Cal.4th at p. 696); if degrees of theft are lesser included offenses of robbery, kinds of manslaughter must be lesser included offenses of murder.
We are not persuaded Sanchez narrowly applies only to vehicular manslaughter while intoxicated under section 191.5. The fundamental holding of Sanchez centers on a stringent application of the elements test. All forms of vehicular manslaughter, whether articulated in section 191.5 or section 192 require the actor to be driving a vehicle, an element missing from murder. This is precisely what Sanchez observed in disapproving Watson II, which dealt with vehicular manslaughter charged under section 192, and Garcia, which related to gross vehicular manslaughter while intoxicated charged under section 191.5—both forms of vehicular manslaughter in those cases required extra elements not included in murder (a vehicle and intoxication), so they could not be considered lesser included offenses. (Sanchez, supra, 24 Cal.4th at pp. 990-991.) In overruling these cases, Sanchez focused entirely on the elements required for the offense and made no distinction between section 192 at issue in Watson and section 191.5 at issue in Garcia.
Watson II involved a drunk driver who caused a deadly collision; but, at the time Watson II was decided, section 191.5 had not yet been codified, nor did any part of section 192 specifically reference intoxication. The vehicular manslaughter conviction considered was pursuant to section 192, former subdivision 3(a), which provided as follows: "3. In the driving of a vehicle— [¶] (a) In the commission of an unlawful act, not amounting to felony, without gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (Stats. 1945, ch. 1006, § 1, p. 1943.)
When Sanchez distinguished Ortega, it reiterated that gross vehicular manslaughter cannot be viewed as a "degree of murder." (Sanchez, supra, 24 Cal.4th at p. 992.) Although nonvehicular manslaughter is generally a lesser included offense of murder, the court stressed again that gross vehicular manslaughter requires proof of additional elements that are "not included in the offense of murder or in other forms of nonvehicular manslaughter." (Ibid.) That reasoning applies with equal force to every form of vehicular manslaughter which, unlike murder and nonvehicular manslaughter, all require at least one additional element: driving of a vehicle.
As a result, it makes no difference that vehicular manslaughter under section 191.5 is not codified under the umbrella of section 192, which delineates "kinds" of manslaughter, including vehicular, arguably comparable to the "degrees" of theft observed in Ortega. (See Ortega, supra, 19 Cal.4th at p. 696.) Despite recognition of Ortega's reasoning with regard to theft, the majority in Sanchez was clear the test to determine if an offense is necessarily lesser included turns on whether it requires proof of additional elements not required for the greater offense. (Sanchez, supra, 24 Cal.4th at pp. 991-992.) Under this elements test, whether vehicular manslaughter as set forth in section 192(c) is defined as a "kind" of manslaughter is not a compelling distinction from section 191.5. Both section 191.5 and section 192 vehicular manslaughter offenses require additional elements from murder; it is the presence of additional elements that governs the lesser included analysis.
Moreover, in distinguishing any reliance Ortega placed on the historical tradition of treating theft as a lesser included of robbery, Sanchez observed that while manslaughter in general has been considered a lesser 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." (Sanchez, supra, 24 Cal.4th at p. 992, fn. omitted.) Defendant contends section 191.5 is the "'more recently enacted form[]'" of vehicular manslaughter to which Sanchez referred. However, the fact that vehicular manslaughter under section 192 was codified in 1945, while gross vehicular manslaughter while intoxicated was not separately codified in section 191.5 until 1986, is not a distinction that makes any difference for purposes of drawing a contrast with Ortega: all forms of vehicular manslaughter were enacted much more recently than the forms of nonvehicular manslaughter that have been characterized by the courts as a lesser included offense of murder since at least 1854. (See, e.g., People v. Gilmore, supra, 4 Cal. at p. 380.) To the extent a long and settled tradition of treating an offense as a lesser included was a basis for Ortega to conclude theft was a lesser included of robbery, any similar long and settled tradition in the manslaughter context refers only to the nonvehicular kinds.
Finally, defendant maintains that if the "'kinds'" of manslaughter under section 192 are not treated like the degrees of theft in Ortega, those accused of murder involving the driving of a vehicle will be treated differently from those accused of murder involving a different instrumentality: there will be no lesser included offenses available for murder involving a vehicle, but there are lesser included offenses for murder involving other circumstances.
A similar argument was persuasively rejected in People v. Wolfe (2018) 20 Cal.App.5th 673, 687-688. In Wolfe, the court observed that not all defendants charged with murder are entitled to a manslaughter instruction as a lesser included offense—defendants are only entitled to an instruction on a lesser included offense if the record contains substantial evidence of the lesser crime. (Id. at p. 687, citing People v. Moore (2011) 51 Cal.4th 386, 408-409.) Therefore, in some implied malice murder cases not involving a vehicle where there is no evidence of the lesser crime, those defendants are not entitled to an instruction on any lesser offenses. (Wolfe, supra, at pp. 687-688.) They are faced with the same all-or-nothing verdict as those who are charged with murder involving driving a vehicle. (Id. at pp. 687-688, citing People v. Evers (1992) 10 Cal.App.4th 588, 592, 598 [defendant convicted of implied malice murder not entitled to manslaughter instruction where no substantial evidence supported it] & People v. Dixon (1995) 32 Cal.App.4th 1547, 1550, 1556-1558 [same].) Determining vehicular manslaughter is not a lesser included offense of murder will not result in the disparate treatment of those charged with murder involving a vehicle.
In sum, we find nothing in Sanchez to indicate any form of vehicular manslaughter may be treated as a lesser necessarily included offense within murder where it requires proof of additional elements. Specifically, vehicular manslaughter committed with gross negligence under section 192(c)(1) requires proof the actor was driving a vehicle in the commission of the offense, an element that is not required for murder. Under the elements test, vehicular manslaughter under section 192(c)(1) is not a lesser necessarily included offense within murder. (Sanchez, supra, 24 Cal.4th at p. 992.) As such, the trial court had no duty to instruct the jury on this offense.
3. No Federal Constitutional Right Implicated
Defendant argues the trial court's failure to instruct the jury on vehicular manslaughter violated his federal constitutional right to due process, rendering his trial fundamentally unfair. We do not agree.
Pursuant to Sanchez, vehicular manslaughter under section 192(c) is not a lesser included offense of murder. (Sanchez, supra, 24 Cal.4th at pp. 991-992.) At most, vehicular manslaughter is a lesser related offense and "there is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions." (People v. Rundle, supra, 43 Cal.4th at p. 148, disapproved on another ground by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Moreover, even the trial court's obligation to instruct on lesser included offenses is based on state constitutional law, not the United States Constitution. (People v. Rundle, supra, at p. 142, citing People v. Breverman (1998) 19 Cal.4th 142, 154-155; see People v. Wolfe, supra, 20 Cal.App.5th at p. 688 [finding no federal constitutional right to vehicular manslaughter instruction as lesser included of murder].) Even assuming vehicular manslaughter were a lesser included offense of murder, which it is not, there is no federal constitutional right to the instruction in noncapital cases. (People v. Rundle, supra, at p. 142.)
Defendant maintains the lack of an instruction on vehicular manslaughter resulted in the jury receiving incomplete instructions on the implied malice element because the vehicular manslaughter instruction would have informed the jury that, without defendant's subjective awareness of—and conscious disregard for—the risk to life, implied malice would be lacking. Defendant contends this is analogous to where a court fails to instruct on heat of passion voluntary manslaughter as a lesser included of murder, which results in the jury receiving incomplete instructions on the malice element. We are not persuaded.
Here, the jury was instructed on implied malice, and defendant was free to argue—and did argue—the prosecution had failed to prove that element of the crime. An instruction on vehicular manslaughter would not have clarified the implied malice standard, and defendant's comparison to heat of passion instruction in murder cases is inapposite. Evidence of heat of passion may negate the malice element of murder (People v. Rios, supra, 23 Cal.4th at p. 462); when murder and manslaughter are considered in the same case and heat of passion is put in issue, federal due process requires the prosecutor prove malice beyond a reasonable doubt by proving sufficient provocation or heat of passion was lacking. (Id. at pp. 461-462; Mullaney v. Wilbur (1975) 421 U.S. 684, 703 ["We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case."]) In that situation, it is necessary to instruct on the heat of passion and/or provocation. Unlike the heat of passion in voluntary manslaughter, the requisite gross negligence state of mind for vehicular manslaughter under section 192(c)(1) does not necessarily negate the element of implied malice, nor is it a mitigating circumstance that implicates the federal due process concerns. The instruction pertaining to implied malice was not rendered incomplete for lack of an instruction on vehicular manslaughter. We conclude no due process rights under the federal Constitution were implicated by the trial court's refusal to instruct on vehicular manslaughter.
4. Conclusion
We conclude the trial court did not err in refusing to instruct the jury on vehicular manslaughter under section 192(c), nor did the lack of the instruction violate defendant's due process rights. As such, we decline to conduct a harmless error analysis. (See People v. Miramontes (2010) 189 Cal.App.4th 1085, 1103.)
III. Vehicular Manslaughter Instruction as a Lesser Related Offense
A. Background
At trial, the defense requested the jury be instructed on vehicular manslaughter, to which the prosecution objected. The court denied the request for a vehicular manslaughter instruction reasoning it was not a lesser included offense pursuant to Sanchez, supra, 24 Cal.4th at page 988.
Defendant argues even if vehicular manslaughter pursuant to section 192(c) is only a lesser related offense of murder, the trial court's refusal to instruct on this lesser related offense violated defendant's state and federal constitutional rights to present his defense theory. According to defendant, under state law a "'criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.'" (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1142; People v. Saille (1991) 54 Cal.3d 1103, 1119). Similarly, under the federal Constitution, defendants have the right to a meaningful opportunity to present a complete defense and to adequate instructions on the defense theory of the case. (See Crane v. Kentucky (1986) 476 U.S. 683, 690 [under either the due process clause of the 14th Amend. or the compulsory process or confrontation clauses of the 6th Amend., the U.S. Const. guarantees criminal defendants a meaningful opportunity to present a complete defense].) Defendant contends the instruction was necessary for the jury to fully understand the legal basis for his defense theory that implied malice had not been proven.
The People assert an instruction on a lesser related offense would have provided the jury no guidance or assistance in determining whether defendant harbored the requisite implied malice for murder. Moreover, a defendant is not entitled to instructions on lesser related offenses absent the prosecutor's consent; as the prosecutor objected to the instruction here, the People contend defendant's argument is an attempt to circumvent the California Supreme Court's decision in Birks, supra, 19 Cal.4th at page 136.
B. The Birks Rule on Lesser Related Offenses
While the trial court must instruct on lesser included offenses where there is substantial evidence the defendant is guilty only of the lesser offense (even absent a request and even over the parties' objections) (People v. Breverman, supra, 19 Cal.4th at p. 162), the same is not true for lesser related offenses. Pursuant to the California Supreme Court's decision in Birks, a defendant has no right under the state Constitution to an instruction on a lesser related offense, and the trial court is not permitted to instruct on an uncharged lesser related crime unless agreed to by the prosecution. (Birks, supra, 19 Cal.4th at pp. 136-137.)
The rule announced in Birks was predicated on serious legal and practical concerns about allowing a defendant to control whether instructions are given on uncharged lesser nonincluded offenses. The Birks court reasoned that allowing instructions on uncharged but lesser related offenses created a tactical imbalance against the prosecution that is "significant and inappropriate." (Birks, supra, 19 Cal.4th at p. 128.) For example, where evidence is presented at trial that convinces the prosecution or the court that some lesser related offense, and not the stated charge, may have been established and the jury should therefore consider the lesser related as an option, the defendant may be able to block such consideration by raising notice objections. (Ibid.) If, on the other hand, the prosecutor opposes the jury's consideration of uncharged lesser related offenses, the defendant would have the unqualified right to override the prosecutor's objections, despite that the prosecution did not charge and assumed no obligation to prove the lesser related offense. (Ibid.) Allowing instruction on a lesser related offense "affords the defense a superior right at trial to determine whether the jury will consider a lesser offense alternative, or instead will face an all-or-nothing choice between conviction of the stated charge and complete acquittal." (Ibid.)
Birks also focused on strategic and practical problems: "[b]ecause the evidence of uncharged and nonincluded offenses may develop only at trial, the difficulties of planning trial strategy are greatly enhanced." (Birks, supra, 19 Cal.4th at p. 131.) Further, because there are no clear standards for determining when a lesser nonincluded offense is related to the charged offense for instructional purposes, Birks observed the defendant is left with "potentially infinite latitude to argue a sufficient link," complicating uniform application of the rule among the vast variety of factual situations that arise in each case. (Ibid.) Birks also articulated concern, without deciding the issue, that allowing a defendant to usurp a prosecutor's charging discretion may violate the separation of powers clause in the California Constitution. (Birks, supra, at p. 134.) In addition to these issues, the court observed the United States Supreme Court had recently held uncharged, lesser but nonincluded offenses were not to be instructed under federal law (Schmuck v. United States (1989) 489 U.S. 705, 715-716), nor were instructions on uncharged, lesser but nonincluded offenses required under the federal Constitution (Hopkins v. Reeves (1998) 524 U.S. 88, 90-91). (Birks, supra, at pp. 123-124.) For all these reasons, Birks held a trial court is precluded from instructing on uncharged, lesser nonincluded offenses absent the prosecutor's consent. (Id. at p. 136.)
C. Analysis
As discussed at length above, vehicular manslaughter is not a lesser included offense of murder. At best, vehicular manslaughter is only a lesser related offense. Thus, when defendant requested the instruction here and the prosecutor objected, Birks precluded an instruction on vehicular manslaughter. Defendant nonetheless argues he is entitled to an instruction on vehicular manslaughter because Birks does not apply to this particular situation, and defendant's federal constitutional right to present a defense demands the instruction.
According to defendant, Birks stands for the proposition that a trial court "cannot present the jury with the option of convicting the defendant of an uncharged lesser related offense without the prosecutor's consent ...." Defendant contends, however, that if he seeks an instruction on a lesser related offense only for purposes of explaining his defense and arguing he should be acquitted of the charged crime (rather than urging he be convicted of the lesser offense), this does not implicate the prosecutor's charging discretion and the separation of powers issues with which Birks was primarily concerned. Although defendant acknowledges this argument was rejected by the Second District Court of Appeal in People v. Valentine (2006) 143 Cal.App.4th 1383, 1385 (Valentine), he maintains that court's reasoning was flawed.
The defendant in Valentine was charged with robbery, but argued the evidence at trial showed he committed the uncharged crime of receiving stolen property; Valentine unsuccessfully urged the trial court to instruct on the uncharged offense in hopes he could convince the jury he committed the uncharged offense, and they would acquit him of robbery. (Valentine, supra, 143 Cal.App.4th at pp. 1385, 1387.) On appeal, Valentine maintained he was entitled to the requested instruction as an explanation of his defense theory that he received stolen property, but he did not steal it. (Id. at p. 1387) While Valentine acknowledged Birks precluded him from an instruction on the lesser related offense to argue for conviction of the lesser related offense rather than the charged offense, Valentine requested the lesser related instruction so that he could argue for outright acquittal. The court rejected this argument, concluding this approach would "turn Birks on its head." (Ibid.) Further, the court reasoned the commission of a lesser related offense is not a true defense to the charged offense and, therefore, the lack of an instruction did not impinge on Valentine's right to present a defense. Rather, "[i]t simply reflected the fact that the prosecutor chose not to file on the other charge." (Valentine, supra, at p. 1388.)
Defendant argues Valentine is flawed because it fails to account for the fact that "the prosecutor could prevent the defendant from arguing for an outright acquittal by allowing the lesser related offense to be presented to the jury as a verdict option." Defendant's contention entirely overlooks the rationale underpinning Birks and potentially prejudices the prosecution in the same manner Birks sought to foreclose. A defendant would be able to tactically manipulate or otherwise influence what offenses were charged and would be able to seek lesser related instructions based on trial evidence the prosecutor may not have anticipated. This runs headlong into the separation of powers issue noted by Birks by encroaching on the exclusive province of the prosecutor's charging discretion, and it implicates all the tactical gamesmanship Birks aimed to preclude. The reasoning of Valentine was not flawed in rejecting this argument.
We also agree with Valentine that the commission of an uncharged offense is not a true defense to the charged crime when the commission of the lesser related offense does not necessarily negate an element of the charged offense. (See Valentine, supra, 143 Cal.App.4th at p. 1388.) Moreover, the lack of an instruction on the lesser related offense does not preclude the defendant from arguing the elements of the charged offense were not proven—that argument can be made without reference to a different, uncharged crime. In sum, defendant is not entitled to an instruction on vehicular manslaughter to explain his defense theory to the jury.
For similar reasons, we are not persuaded the failure to instruct on vehicular manslaughter implicated defendant's federal Sixth and Fourteenth Amendment rights to a meaningful opportunity to present a complete defense and to adequate instructions on the defense theory of the case. First, a defendant does not have a federal constitutional right to compel the giving of lesser-related-offense instructions. (People v. Foster (2010) 50 Cal.4th.1301, 1344.) Second, the lack of instruction on vehicular manslaughter did not preclude defendant from presenting and arguing his theory of the case that he did not act with implied malice, which he did address in his opening statement, closing argument, and through his testimony. (See People v. Wolfe, supra, 20 Cal.App.5th at p. 688.) There is no basis to conclude the failure to instruct on voluntary manslaughter resulted in a fundamentally unfair trial. (See People v. Rundle, supra, 43 Cal.4th at p. 148 [the absence of lesser related instruction did not prevent the defendant from presenting his version of events, or from arguing to the jury that he was not guilty of the charged crime such that it could be concluded his trial was fundamentally unfair].)
IV. Cumulative Error
Defendant also claims that, cumulatively, the trial court's instructional error and the trial court's preclusion of his testimony resulted in prejudice. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having concluded that there was only potentially an error with regard to the exclusion of testimony, which was not prejudicial in itself, there is nothing to cumulate. As such, we necessarily reject defendant's claim of cumulative error resulting in prejudice. (People v. Williams (2013) 56 Cal.4th 165, 201; People v. Sedillo, supra, at p. 1068.)
V. Senate Bill No. 136
As noted above, based on defendant's admission, the trial court found true defendant had suffered a prior serious felony conviction for which the court imposed a one-year sentence enhancement. (§ 667.5, former subd. (b).) In supplemental briefing, defendant contends this one-year enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020. (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1 (Senate Bill No. 136); see Cal. Const., art. IV, § 8, subd. (c).) The People concede this one-year enhancement under section 667.5, subdivision (b), should be stricken.
Pursuant to section 667.5, subdivision (a), which remains unchanged, courts are required to impose a three-year sentence enhancement for each prior, separate prison term served by the defendant where the prior and current offense were violent felonies, as defined in subdivision (c) of section 667.5. As to other types of felonies, former section 667.5, subdivision (b), imposed an additional one-year term for each prior, separate prison term or county jail felony term, except under specific circumstances. The amended section 667.5, subdivision (b), now imposes that additional one-year term only for each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).)
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600.) The parties agree that Senate Bill No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5, subdivision (b), applies in this case.
The parties also agree defendant's prior felony conviction for reckless evasion of a peace officer in violation of the Vehicle Code section 2800.2, is not a qualifying offense under section 667.5, subdivision (b), as amended. We accept the People's concession on both points and order defendant's one-year prior prison term enhancement stricken.
DISPOSITION
Pursuant to Senate Bill No. 136, the matter is remanded to the trial court to strike the one-year prior prison term enhancement with instructions to prepare an amended abstract of judgment so reflecting and forward the amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.