Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge, Super. Ct. No. F08906873
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Franson, J.
On a clear afternoon in September 2008, appellant Justino Vasquez was driving southbound on Fig Avenue in rural Fresno County, under the influence of alcohol. As he approached the stop sign at the intersection with Central Avenue, he slowed, but failed to stop before continuing into the intersection. Another vehicle simultaneously entered the same intersection going westbound on Central Avenue, which has no stop signs at that intersection. The ensuing collision killed appellant’s passenger and severely injured appellant. A jury convicted appellant of second degree murder. On appeal, appellant challenges the presentation of evidence of his prior convictions, and the trial court’s jury instructions on the implied malice element for second degree murder. For the reasons discussed below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Before the September 2008 collision, appellant plead guilty to three prior misdemeanor offenses of driving under the influence (DUI). (Veh. Code, § 23152.) Two of the prior offenses occurred in 2002, which he plead guilty to in May 2007. The third prior offense occurred in 2007 and appellant plead guilty in January 2008. When pleading guilty to each of these offenses, appellant was read, and indicated he understood, advisements informing him of the dangerousness of driving under the influence and the possibility he would be charged with murder should he get in an accident causing a person’s death while he was driving under the influence.
On the current offense, appellant was charged with one count of second degree murder. (Pen. Code, § 187, subd. (a).) In pretrial motions, appellant requested the trial court exclude evidence relating to two of his three prior DUIs as cumulative and unduly prejudicial. The trial court, exercising its discretion under Evidence Code section 352, allowed introduction of evidence of all three of appellant’s prior DUIs.
Appellant also requested jury instructions on gross vehicular manslaughter while intoxicated (CALCRIM No. 590) and the effect of voluntary intoxication on homicide crimes (CALCRIM No. 625). The trial court denied these requests. Defense counsel did not request modified instructions.
At the close of trial, the trial court instructed the jury on the elements of murder, including implied malice, without objection from either party. During closing arguments, the prosecution stepped through each element of an implied malice finding with the jury, with no objection from appellant. Defense counsel argued the prosecution had failed to make a sufficient showing of implied malice.
The jury found appellant guilty of murder after approximately an hour and twenty minutes of deliberations and requested no clarifications of law during their deliberations. The trial court denied appellant probation based on his previous compliance failures, and sentenced him to 15 years to life.
DISCUSSION
I. PRIOR DUI CONVICTIONS
Appellant asserts the trial court abused its discretion under Evidence Code section 352 when it allowed the prosecution to present evidence of each of appellant’s three prior DUI convictions and related factual information, such as appellant’s blood alcohol level in one of the prior convictions. Second degree murder may be charged in connection with a vehicular homicide where the facts surrounding the offense support a finding of implied malice. (People v. Watson (1981) 30 Cal.3d 290, 294 (Watson).) “[M]alice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]” (Id. at p. 296.) Determining implied malice requires a showing the defendant actually appreciated the risk involved. (Id. at pp. 296-297.)
Appellant acknowledges the probative nature of the fact he was given a “murder advisement” about the dangers to human life while driving intoxicated and the possibility of a murder charge resulting from any loss of life were he to drive while intoxicated. Appellant asserts, however, that inclusion of his two additional prior DUI convictions and the blood alcohol content (BAC) information was excessive and unduly prejudicial under Evidence Code section 352. Respondent argues all three prior convictions were probative of appellant’s knowledge and therefore admissible. We agree with respondent that the trial court made no error in allowing evidence of all three prior convictions as well as the related facts.
In People v. Johnson (1994) 30 Cal.App.4th 286, the defendant was convicted of second degree murder for killing a victim when driving while intoxicated. Blood drawn approximately two hours after the accident showed defendant had a.20 BAC at that time. (Id. at p. 289.) Appellant contended evidence of his four prior DUI convictions was irrelevant to prove actual subjective knowledge of great risk to human life, and was highly prejudicial. (Id. at p. 290.) The appellate court held that a conviction alone is probative on the issue of defendant’s subjective awareness of the risks of drunk driving, and the trial court made no error in admitting the defendant’s prior DUI convictions. (Id. at p. 292.) Addressing the defendant’s Evidence Code section 352 argument specifically, the appellate court stated, “evidence of the prior convictions here was highly probative on [the issue of implied malice]” and rejected the defendant’s claim that the trial court abused its discretion in failing to exclude such evidence. (Id. at p. 292, fn. 3.) The appellate court specifically aligned its holding with People v. McCarnes (1986) 179 Cal.App.3d 525 (McCarnes). (People v. Johnson, supra, 30 Cal.App.4th at p. 292, fn. 3.)
In McCarnes, the defendant was driving on a Saturday afternoon with a.27 BAC and attempted to pass a car on a two-lane road, resulting in a head-on collision that killed a man and his infant daughter, and injured four others. He was charged with two counts of murder, two counts of vehicular manslaughter, and other related offenses. The trial court allowed evidence of four prior DUI convictions, and instructed the jury it could consider them only on the issue of implied malice. (McCarnes, supra, 179 Cal.App.3d at p. 530.) The trial court ruled, and the appellate court affirmed, that evidence of the convictions would be highly probative that the defendant possessed the knowledge his conduct would endanger the lives of others as well as that he consciously and deliberately disregarded such knowledge. (Ibid.) The trial court acknowledged, and the appellate court agreed, the evidence was highly prejudicial, but that it was “‘so substantial’” on the issues of knowledge and conscious disregard, that its probative value outweighed the danger of undue prejudice under an Evidence Code section 352 analysis. (Ibid.) The appellate court, rejecting the defendant’s argument that evidence of the convictions merely demonstrated defendant’s knowledge that drunk driving was unlawful, rather than dangerous, stated: “the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe [citations], is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers.” (Id. at p. 532.) We agree.
Similar to the defendants in Johnson and McCarnes, appellant here suffered three prior DUI convictions. Furthermore, he was verbally informed, by the court interpreter translating the change of plea forms, of the dangerousness, and the consequences, of his actions. Evidence of the convictions and related facts supporting his pleas, including his BAC in one of the prior convictions, was highly probative as to defendant’s knowledge that his conduct would endanger the lives of others, and that he consciously disregarded that knowledge and continued to drink to excess and then drive. The trial court made a reasonable decision supported by precedent. We find no abuse of discretion.
IMPLIED MALICE INSTRUCTIONS
Appellant next presents two arguments essentially attacking, from different angles, the manner in which the jury was instructed on the implied malice element of second degree murder. Underlying his jury instruction complaints are assertions that certain decisions of our Supreme Court, this court, and our Legislature should be reconsidered and ultimately overruled. We decline to do so and find the jury instructions given at trial sufficient.
CALCRIM No. 590
Appellant first argues the trial court had a sua sponte duty to instruct the jury on a statement of law patterned after language taken from CALCRIM No. 590 (gross vehicular manslaughter while intoxicated). Language from this instruction states that a showing of voluntary intoxication, coupled with a traffic violation, is not enough, by itself, to sufficiently show gross negligence, and that the jury should consider a defendant’s level of intoxication, the way he drove, and any other relevant aspects of his conduct in reaching their determination on gross negligence. Appellant did not make this request at trial and now asserts such an instruction states a general principle of law, which imposes on the trial court a sua sponte duty to instruct upon. We disagree.
At trial, appellant initially requested the court instruct the jury with CALCRIM 590, on the theory that gross vehicular manslaughter while intoxicated is a lesser included offense of murder. The trial court denied this request, relying on People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez), which holds that gross vehicular manslaughter while intoxicated is only a lesser related offense to murder. Appellant argues Sanchez should be reconsidered and overruled. In such a case, defendant would be entitled to a jury instruction on the lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 161.) We are bound to follow the Supreme Court’s holding and have no power to do otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We thus decline to consider appellant’s argument to overturn Sanchez.
CALCRIM No. 590 states in pertinent part: “The defendant is charged [in Count ______] with gross vehicular manslaughter while intoxicated [in violation of Penal Code section 191.5(a)]. [¶] … The combination of driving a vehicle while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant’s conduct.”
Appellant is correct that a trial court has a sua sponte duty to instruct the jury on general principles of law governing the case, connected with the evidence and necessary for the jury’s understanding of the case. (See People v. Estrada (1995) 11 Cal.4th 568, 574.) Appellant now argues his requested instruction is on a general principle of law. In our view, however, the instruction requested (which is not even drafted for consideration by this court) amounts at most to highlighting or amplifying some of the specific factors that a jury might consider in determining whether a defendant acted with implied malice as instructed under CALCRIM No. 520 (murder with malice aforethought). In other words, appellant’s requested instruction would be a “pinpoint” instruction relating specific facts (such as the way he drove or other relevant conduct) to the elements of the offense, i.e. implied malice in this case. (See People v. Middleton (1997) 52 Cal.App.4th 19, 32, disapproved on other grounds by People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3.) The trial court need not give such a pinpoint instruction unless requested by a party. (People v. Barton (1995) 12 Cal.4th 186, 197; see also People v. Saille (1991) 54 Cal.3d 1103, 1120 [where defendant was “attempting to relate his evidence of intoxication to an element of the crime … he may seek a ‘pinpoint’ instruction that must be requested by him [citation], but such a pinpoint instruction does not involve a ‘general principle of law’ as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court”].)
Essentially, appellant now asserts the court was required to sua spontedraft and give an instruction using the specific factors listed in the gross vehicular manslaughter instruction of CALCRIM No. 590, but the effect of such an instruction would be to clarify or amplify the implied malice instruction included in CALCRIM No. 520. “A defendant who believes that an instruction requires clarification must request it.” (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) Because appellant did not object to CALCRIM No. 520 nor request modification or clarification of that instruction, he cannot do so now on appeal. The trial court properly instructed the jury on the elements of second degree murder, including the requirements for a showing of implied malice. It was thus incumbent upon appellant to raise at trial a request for an instruction elaborating on the implied malice instruction. (People v. Beeler (1995) 9 Cal.4th 953, 983.)
The trial court instructed the jury: “The defendant acted with implied malice if: [¶] One, he intentionally committed an act. [¶] Two, the natural and probable consequences of the act were dangerous to human life. [¶] Three, at the time he acted he knew his act was dangerous to human life. [¶] And, four, he deliberately acted with conscious disregard for human life.”
Given our finding that the trial court had no sua sponte duty to instruct the jury on a statement of law taken from CALCRIM No. 590, appellant falls back on an ineffective assistance of counsel claim. Appellant argues that counsel’s failure to request a modified instruction amplifying the implied malice instruction constituted conduct falling below an objective standard of reasonableness under prevailing professional norms, and that such deficient performance of his duties prejudiced the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692.) Even assuming defense counsel performed deficiently, appellant fails to show there is a reasonable probability the outcome would have been different absent counsel’s deficiencies. (See id. at p. 694.)
The evidence was overwhelming that appellant acted with implied malice. At the hospital, while being recorded, he admitted to Officer David Trejo that he knew he was driving drunk, that it was against the law to do so, that he should not have been doing so, and that he could be charged in connection with someone dying as a result of his intoxicated driving. The jury heard the recording of Officer Trejo’s interview with appellant, and had a written transcript of the interview as well. A criminalist testified that appellant’s BAC was.19 nearly three hours after the collision. He had three prior DUIs, the most recent conviction only eight months before the collision. He was warned on multiple occasions of the danger to human life of driving while intoxicated. Furthermore, “‘[o]ne who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’” (Watson, supra, 30 Cal.3d at pp. 300-301, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 897.)
Defense counsel was free to clarify or attack the requirements of implied malice, and did so during his closing argument. He questioned the prosecution’s evidence as to appellant’s knowledge of the seriousness of the offense, his state of mind and knowledge when he got in the car, whether his actions indicated a conscious disregard for human life, and the premise that because appellant had prior DUIs and warnings, he therefore had malice aforethought. The jury rejected these arguments when it returned a verdict of guilty. It is not reasonably probable the jury would have come back with a different verdict had they been instructed as appellant requests. Appellant fails to sufficiently show he was prejudiced by any defense counsel deficiency.
B. CALCRIM No. 625
Appellant also asserts the trial court erred in failing to instruct the jury with CALCRIM No. 625 (the effects of voluntary intoxication on homicide crimes), which is based on Penal Code section 22. As appellant concedes, however, Penal Code section 22, as it currently stands, specifically prohibits an instruction that voluntary intoxication may be considered in deciding whether the defendant harbored implied malice aforethought. (Pen. Code, § 22, subd. (a).) He suggests this court find Penal Code section 22 unconstitutional, notwithstanding our opinion in People v. Martin (2000) 78 Cal.App.4th 1107 (Martin), upholding the section’s constitutionality in circumstances similar to this case. Appellant fails to persuade us to revisit Martin.
CALCRIM No. 625 states in pertinent part: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[, ] [or] [the defendant acted with deliberation and premeditation[, ]] [[or] the defendant was unconscious when (he/she) acted[, ]] [or the defendant __________ <insert other specific intent required in a homicide charge or other charged offense>.]”
Penal Code section 22 states in pertinent part: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”
Furthermore, more recently in People v. Timms (2007) 151 Cal.App.4th 1292 (Timms), the First District addressed appellant’s assertions. Although appellant contends Timms was also decided wrongly, we find it apposite. The appellant in Timms, similar to appellant, argued that Penal Code section 22 violated his due process rights because the effect was to exclude relevant exculpatory evidence on the issue of whether he harbored a conscious disregard for life. The Timms court noted our conclusion in Martin that for reasons of public policy, when amending Penal Code section 22 in 1995, the Legislature determined evidence of voluntary intoxication to negate culpability shall be strictly limited. (Timms, supra, at p. 1299.)
Similar to appellant here, the appellant in Timms relied on Justice Ginsburg’s concurrence in Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), to urge reconsideration of our opinion in Martin, asserting the Penal Code section 22 amendment falls within a category of evidentiary rules designed to keep out relevant, exculpatory evidence -- a category which violates due process. If the amendment is characterized instead as redefining the mental state required for second degree murder, however, appellant here concedes it would not violate due process. This was the outcome in Egelhoff. As the Timms court explained, “[Justice Ginsburg] viewed the Montana statute as amounting to a redefinition of the offense that rendered evidence of voluntary intoxication irrelevant to proof of the requisite mental state. [Citation.]” (Timms, supra, 151 Cal.App.4th at p. 1299.) Thus, the Montana statute, which is akin to Penal Code section 22 here in California, was constitutional. (Timms, supra, at p. 1300.)
The Montana statute at issue in Egelhoff states in pertinent part: “an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense ….” (Mont. Code Ann., § 45-2-203.)
“Assuming that Justice Ginsburg’s concurrence controls, we nonetheless conclude that the application of section 22 does not violate appellant’s due process rights.” (Timms, supra, 151 Cal.App.4th at pp. 1299-1300.) The Timms court concluded, “section 22, subdivision (b) is not ‘merely an evidentiary prescription’; rather, it ‘embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.’ (Egelhoff, supra, 518 U.S. at p. 57 (conc. opn. of Ginsburg, J.).) In short, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard. Therefore, it does not lessen the prosecution’s burden of proof or prevent a defendant from presenting all relevant defensive evidence.” (Id. at pp. 1300-1301.) Penal Code section 22 passes constitutional scrutiny and precluded the trial court from giving CALCRIM No. 625 to the jury. We find no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J.Cornell, J.