Opinion
G053063
08-09-2017
THE PEOPLE, Plaintiff and Respondent, v. NEIL STORM STEPHANY, Defendant and Appellant.
Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14HF2889) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Neil Storm Stephany struck a bicyclist while driving his pickup truck. The bicyclist died. A test of defendant's blood later showed he was driving under the influence of lorazepam and morphine. The prosecution offered evidence of defendant's voluntary intoxication, as well as his previous conviction for driving under the influence, to establish implied malice supporting defendant's conviction for second degree murder.
On appeal, defendant argues that the trial court erred by (1) refusing to give a pinpoint instruction regarding implied malice, and (2) failing to instruct the jury on gross vehicular manslaughter while intoxicated. Finding no merit in defendant's claims, we affirm his conviction.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On October 19, 2014, defendant was driving his white pickup truck southbound on the 73 toll road. About 5:00 p.m., a witness observed defendant driving erratically at a high rate of speed. Defendant swerved between lanes and failed to negotiate an exit, missing the off-ramp and driving onto a dirt embankment before returning to the freeway.
Defendant exited the toll road and proceeded onto highway 133. Defendant was later seen driving near the intersection of Cliff Drive and Pacific Coast Highway in Laguna Beach. He stopped at a stop sign and remained there until the driver behind him honked. Defendant drove northbound on Pacific Coast Highway, swerving erratically across lanes and crossing the center divider into oncoming traffic. He drifted into the bike lane and scraped the guardrail before hitting a bicyclist. Defendant did not apply the brakes before the collision. The bicyclist died as the result of his injuries.
Newport Beach Police Officer Ricardo Adame received information over dispatch about a hit-and-run accident involving a white pickup truck and a bicyclist. At 5:08 p.m., Adame spotted defendant's truck and pulled defendant over. Adame observed defendant's bloodshot eyes and slow, slurred speech. Defendant volunteered to Adame that he had injected heroin earlier. Officer Michael Striek arrived on the scene and also observed defendant's bloodshot eyes, slurred speech, and lethargy. Striek directed defendant to take several field sobriety tests, and concluded defendant was under the influence of an intoxicating substance.
Striek arrested and searched defendant. In defendant's pocket, Striek found two used hypodermic syringes, a black shoelace, and a piece of cellophane wrapped around eight suboxone sublingual films. Defendant told Striek the syringes were used to inject heroin. Striek testified heroin addicts commonly use a shoelace as a tourniquet to inject drugs, and the films are medication prescribed for the treatment of heroin addiction.
A drug recognition expert interviewed and evaluated defendant at the police station, and concluded defendant was under the influence of a "narcotic analgesic and a central nervous system depressant-type drug." An expert in forensic toxicology analyzed defendant's blood sample and found lorazepam and morphine in his bloodstream. Lorazepam, sold under the brand name Ativan, is a depressant that can cause symptoms similar to alcohol impairment. Morphine is the drug found in the blood when a person uses heroin.
In 2011, in connection with a separate, prior criminal matter, defendant pled guilty to driving under the influence of alcohol. On the plea form, defendant initialed a statement, acknowledging: "I have been advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, I can be charged with murder." After the conviction based on that guilty plea, defendant participated in a DUI class. Defendant was told in the class about the dangers to human life of driving under the influence of alcohol or drugs, or both, and he wrote a letter explaining he understood those dangers. In 2013, in connection with another criminal action, defendant initialed a statement acknowledging: "You are hereby advised that being under the influence of alcohol or drugs or both impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. If you continue to drive while under the influence of alcohol or drugs or both, and, as a result of that driving, someone is killed . . . you can be charged with murder."
A jury convicted defendant of second degree murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to 15 years to life in prison. Defendant timely filed a notice of appeal.
DISCUSSION
I.
Failure to Give Pinpoint Instruction Regarding Implied Malice
Defendant contends that the trial court erred in refusing to give a pinpoint instruction regarding implied malice. As explained post, we conclude the trial court did not err in refusing to give defendant's requested pinpoint instruction.
The trial court instructed the jury with CALCRIM No. 520, as follows: "The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] and, [¶] 4. He deliberately acted with conscious disregard for human life." Defendant requested that the trial court also give the following special instruction: "To find that the natural consequences of an act are dangerous to human life, you must conclude that there was a high probability that act would result in death. If you have a reasonable doubt whether this standard is met, you must find the defendant not guilty." The trial court denied defendant's request: "CALCRIM 520 adequately defines natural and probable consequences and correctly distills the applicable case law. [¶] . . . CALCRIM 520 and the high probability language in defendant's special instruction embody the same standard. They are one and the same."
In denying defendant's request for the special instruction, the trial court further reasoned (1) the "high probability" language of the proposed pinpoint instruction was "ancient history," because it was deleted from the CALJIC instruction, and had never reappeared in CALJIC or CALCRIM; (2) the California Supreme Court in People v. Nieto Benitez (1992) 4 Cal.4th 91, 111, held the "natural and probable" consequences language was equivalent to the "high probability" language; (3) the "high probability" language would be difficult to define for the jury; (4) there is no authority which requires the "high probability" language; and (5) the defense could mention the words "high probability" in argument without requiring a special instruction because such language would be "interchangeable" with the language of CALCRIM No. 520. Given our holding, we need not address any of the trial court's additional grounds for denying defendant's request.
A defendant is entitled, on request, to instructions that "pinpoint" the theory of the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142; People v. Canizalez (2011) 197 Cal.App.4th 832, 856.) However, when the pattern instructions fully and adequately advise the jury on a particular issue, a pinpoint instruction on that point is properly refused. (People v. Canizalez, supra, 197 Cal.4th at p. 857.)
The California Supreme Court in People v. Watson (1981) 30 Cal.3d 290 (Watson I) explained that malice is implied when the defendant "does '"'an act, the natural consequences of which are dangerous to human 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.'". . . .' [Citations.] Phrased in a different way, malice may be implied when the defendant does an act with a high probability that it will result in death." (Id. at p. 300.) The two phrases thus "are equivalent and are intended to embody the same standard." (People v. Nieto Benitez, supra, 4 Cal.4th at p. 111.)
Here, the trial court did not err in refusing to give defendant's pinpoint instruction. Defendant's pinpoint instruction defining implied malice was properly refused because CALCRIM No. 520 fully and adequately advised the jurors on implied malice. CALCRIM No. 520 informed the jury that it could find implied malice if, among other things, the "natural and probable" consequences of defendant's act were dangerous to human life. Because the phrases are synonymous, and because there is "no authority which requires that implied malice be defined with the phrase 'high probability' as opposed to 'dangerous to human life'" (People v. Cleaves (1991) 229 Cal.App.3d 367, 378), defendant's pinpoint instruction was unnecessary, and the trial court did not err in refusing to give it.
Even if the trial court erred in refusing to give defendant's proposed pinpoint instruction, defendant suffered no prejudice. Under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson II), "a 'miscarriage of justice' should be declared only when . . . it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error." In this case, it was not reasonably probable that a result more favorable to defendant would have been reached in the absence of the alleged error. Defendant ingested lorazepam, injected heroin, and drove his pickup truck erratically before killing a bicyclist. In connection with two past offenses, he acknowledged driving under the influence was "extremely dangerous." At trial, the jury was fully and adequately instructed it could find implied malice if the "natural and probable" consequences of defendant's act were dangerous to human life. Because the "natural and probable" consequences standard is, as a matter of law, the same as the "high probability" standard, defendant suffered no prejudice.
II.
Failure to Give Instruction on Gross Vehicular Manslaughter While Intoxicated
Defendant contends the trial court erred by failing to instruct the jury that gross vehicular manslaughter while intoxicated was a lesser included offense of second degree murder. As explained post, we conclude the trial court did not err in failing to instruct the jurors on gross vehicular manslaughter while intoxicated.
A lesser offense is necessarily included in the charged offense if the charged offense cannot be committed without committing the lesser offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.) In other words, a less serious offense is necessarily included in a greater offense only if all its elements are also elements of the greater offense. (People v. Sanchez (2001) 24 Cal.4th 983, 988 (Sanchez).) The trial court must instruct the jury on lesser included offenses "only if there is substantial evidence that, if accepted, would absolve the defendant from the guilt of the greater offense but not the lesser." (People v. Waidla (2000) 22 Cal.4th 690, 737.)
By contrast, a criminal defendant does not have a unilateral right to instructions on mere lesser related offenses. (People v. Birks (1998) 19 Cal.4th 108, 136.) Further, the United States Supreme Court in Hopkins v. Reeves (1998) 524 U.S. 88, 96-97, held that criminal defendants do not have a federal constitutional right to jury instructions on lesser related, as opposed to lesser included, criminal offenses.
As defendant acknowledges, the California Supreme Court in Sanchez held that gross vehicular manslaughter while intoxicated is not an offense necessarily included in the crime of second degree murder. (Sanchez, supra, 24 Cal.4th at p. 988.) 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 . . . 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.)
Here, defendant was not entitled to a jury instruction on gross vehicular manslaughter while intoxicated. The statutory elements of second degree murder are (1) the unlawful killing of a human being (2) with malice aforethought. (Pen. Code, § 187, subd. (a).) The statutory elements of gross vehicular manslaughter while intoxicated are (1) the unlawful killing of a human being, (2) without malice aforethought, (3) in the driving of a vehicle, (4) while intoxicated, and (5) the killing was either (a) the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or (b) the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence. (Pen. Code, § 191.5, subd. (a).) Because the statutory elements of second degree murder do not include all the elements of gross vehicular manslaughter while intoxicated, gross vehicular manslaughter while intoxicated is not a lesser included offense of second degree murder. (Sanchez, supra, 24 Cal.4th at p. 989.) We follow the California Supreme Court's precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Gross vehicular manslaughter while intoxicated is not a lesser included offense of second degree murder under the accusatory pleadings test because the language of the information tracked the statutory language of second degree murder and did not describe the additional elements of gross vehicular manslaughter while intoxicated. (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.) Defendant argues, however, neither the elements test nor the accusatory pleadings test is definitive. He claims gross vehicular manslaughter while intoxicated is a lesser included offense of second degree murder under an "expanded" accusatory pleadings test that would permit this court to consider the evidence received at the preliminary hearing. The case relied on by defendant for this proposition, People v. Ortega (2015) 240 Cal.App.4th 956, is inapplicable. First, courts do not consider the preliminary hearing testimony to decide whether an uncharged crime is included in the charged offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1036 ["to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense"]; People v. Leech (1965) 232 Cal.App.2d 397, 399 [the court did "not believe that the preliminary transcript may be used to expand the information to include a different offense"].) Second, unlike in Ortega, where the two crimes shared the same mens rea, the crime with which defendant was charged in the present case does not have the same intent requirement as does the allegedly lesser included crime. Defendant was charged with the specific intent crime of second degree murder rather than the general intent crime of gross vehicular manslaughter while intoxicated.
Even if the trial court erred by not instructing the jury on gross vehicular manslaughter while intoxicated, defendant cannot establish the requisite prejudice. Under the Watson II standard of harmless error, the question is, had the jury been instructed on gross vehicular manslaughter while intoxicated, was it reasonably probable that defendant would have obtained a better result? (Watson II, supra, 46 Cal.2d at p. 836.) Defendant argues it was reasonably probable that a juror would have voted instead for a gross vehicular manslaughter conviction. But, by initialing separate statements in 2011 and in 2013 in connection with earlier matters, defendant twice acknowledged the danger to human life entailed by driving under the influence. Still, he took lorazepam and injected heroin before driving his pickup truck. In light of the evidence regarding his subjective appreciation of the danger caused by his conduct, the jury found implied malice and convicted defendant of murder. Because the jury determined defendant had acted with the requisite state of mind to be guilty of murder, defendant could not have gotten a better result. The refusal to give an instruction on gross vehicular manslaughter while intoxicated was harmless.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.