People v. Ostertag CA2/6 ( 2021 )

Filed 9/22/21 P. v. Ostertag CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B297690
(Super. Ct. No. 2015027858)
Plaintiff and Respondent, (Ventura County)
v.
TYLER JAMES OSTERTAG,
Defendant and Appellant.
Tyler James Ostertag appeals a judgment following
conviction of second degree murder and dissuasion of a witness,
with findings that he personally used a deadly weapon during
commission of the murder, suffered two prior serious felony strike
convictions, and served a prior prison term. (Pen. Code, §§ 187,
subd. (a), 189, subd. (b), 136.1, subd. (b)(1), 12022, subd. (b)(1),
667, subds. (c)(2), (e)(2), 1170.12, subds. (a)(2), (c)(2), 667.5, subd.
(b).)1 We modify the judgment to strike the one-year prison term
imposed for a prior prison term served, award Ostertag an
1 All further statutory references are to the Penal Code.
additional one day of presentence custody credit, and order that
any fines, fees, or assessments be stayed pursuant to the trial
court’s oral order, but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
Joseph H. and Daniel M. were attending high school
together and were friends. Ostertag, then 20 years old, had
attended the same high school. Although Joseph H. and
Daniel M. barely knew Ostertag, he “had a problem” with them,
based upon complaints of abuse made by Joseph H.’s erstwhile
girlfriend. In the spring of 2015, Joseph H. and Daniel M. were
having lunch together when Ostertag glared at them from across
the street. Daniel M. approached Ostertag and asked if he had a
problem; Ostertag replied no and walked away. Later Ostertag
returned and resumed staring at Joseph H.
In early August 2015, Joseph H. and Ostertag spoke of
fighting each other. Joseph H.’s girlfriend informed him that
Ostertag was looking for him.
On August 31, 2015, Daniel M. met some friends at a fast-
food restaurant for lunch. They discussed plans to attend an
upcoming football game in which Daniel M. would be playing.
Ostertag and about eight others soon arrived in two
vehicles at the restaurant parking lot to transact marijuana
sales. When Daniel M. saw Ostertag and the others arrive, he
placed several phone calls, including to Joseph H., requesting
“backup” and referring to Ostertag. Daniel M. stated that
“[t]here’s some fools here” and that Ostertag was “dogging” him.
Joseph H. arrived in his truck and Daniel M. walked
outside to meet him. The two men climbed into the truck bed.
Joseph H. and Ostertag glared at each other and Joseph H.
shouted, “What’s up?” Ostertag walked over to the truck bed and
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asked if there was a problem. Joseph H. said no and jumped
from the truck bed. Ostertag then charged and punched Joseph
H. The two men began to fight in the parking lot, surrounded by
onlookers. For several minutes, Joseph H. repeatedly threw
Ostertag to the ground and then pronounced that the fight was
over. Joseph H. warned Ostertag to stay away.
Ostertag rose from the ground and announced that he was
“gonna go get [his] knife” and was “going to stab” and “kill”
Joseph H. Daniel M. said in feigned disbelief, “Oh, you’re gonna
grab a knife.” Ostertag responded with obscenities.
Ostertag ran to the vehicle in which he had arrived and
took a knife with a four-inch blade. Onlookers shouted warnings
that Ostertag had a knife and advised Ostertag to stop. Ostertag
did not react to the warnings.
Daniel M. then obtained a metal bar from Joseph H.’s
truck. He squared up with Ostertag, asking if Ostertag really
intended to stab him. Ostertag and Daniel M. exchanged
punches and Ostertag then stabbed Daniel M. in the chest under
his left arm. The fight continued for another five seconds as
Daniel M. attempted to strike Ostertag with the metal bar.
Ostertag then ran to the vehicle belonging to his friend, Blake W.
An adult restaurant patron filmed the altercation between
Daniel M. and Ostertag, the stabbing, and Ostertag’s flight
afterward in Blake W.’s vehicle. The patron informed Ostertag
and Blake W. that he had filmed the altercation, including Blake
W.’s license plate. The prosecutor played the video recording at
trial.
Joseph H. drove Daniel M. to the hospital. While Joseph H.
was there, Ostertag telephoned him three times and warned him
not to tell anyone about the stabbing. He also stated that he
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would return “with a strap,” which Joseph H. understood to be a
firearm.
Daniel M. died at the hospital from a stab wound to the
heart. The wound, two and one-half inches deep, caused
Daniel M. to bleed to death.
Blake W. drove Ostertag away from the scene. Ostertag
asked Blake W. to drive him to Riverside, and he telephoned a
friend to say he was on his way. As the vehicle passed over a
bridge, Ostertag poured water over the knife and threw it in
some heavy brush. He also telephoned another friend and asked
for the telephone numbers of Joseph H. and Daniel M. Ostertag
admitted that he stabbed Daniel M. and stated that he hoped
Daniel M. would die because he would probably go to jail anyway.
During the drive to Riverside, Ostertag warned Blake W.
not to tell anyone about the stabbing because snitches get hurt.
He added that Blake W. should tell police officers that he drove
Ostertag to the bus terminal in Los Angeles. Blake W. drove
Ostertag to a motel in Riverside where, at Blake W.’s suggestion,
Ostertag turned off his cellular telephone to avoid tracking.
Police officers later arrested Ostertag at the Riverside
motel. Blood on his shirt matched Daniel M.’s DNA profile.
Blake W. led police investigators to the bridge where Ostertag
tossed the knife. They recovered the knife which also contained
Daniel M.’s DNA profile.
Ostertag’s mother testified that he suffered from longtime
mental problems, manifested by poor critical thinking skills,
aggressive behavior, and fighting. He was prescribed
antipsychotic medication but refused it and used marijuana
instead. Ostertag had received inpatient and outpatient mental
health treatment. His mother stated that he had threatened her
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on several occasions and displayed unpredictable and threatening
behavior.
Psychologist Christopher Cornell treated Ostertag for two
and one-half years and opined that he suffered from bipolar
disorder, oppositional defiance disorder, and cannabis abuse.
Cornell opined that Ostertag could act impulsively and suddenly
without considering the consequences of his actions.
Psychologist Ines Monguio testified that Ostertag’s bipolar
disorder and brain deficits impaired his decision making,
precluding his abilities to think or plan. Monguio opined that
Ostertag could not modulate his emotions and that he responded
reactively without thought.
The jury convicted Ostertag of second degree murder and
dissuasion of a witness (Joseph H.). (§§ 187, subd. (a), 189, subd.
(b), 136.1, subd. (b)(1).) It also found that he personally used a
deadly weapon during commission of the murder. (§ 12022, subd.
(b)(1).) In a separate proceeding, the trial court found that
Ostertag suffered two prior serious felony strike convictions and
served two prior prison terms. (§§ 667, subds. (c)(2), (e)(2),
1170.12, subds. (a)(2), (c)(2), 667.5, subd. (b).) The court
sentenced Ostertag, a third strike offender, to an indeterminate
prison term of 70 years to life, plus a determinate two-year term.
The court found that Ostertag did not have the financial ability to
pay fines and fees, ordered victim restitution, and awarded him
1,347 days of presentence custody credit.
Ostertag appeals and contends that the trial court erred by:
1) not conducting a further inquiry into juror misconduct; 2) not
instructing regarding involuntary manslaughter; 3) not
instructing regarding his mental impairment relating to
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consciousness of guilt behavior; and 4) committing several
sentencing errors.
DISCUSSION
I.
Ostertag argues that the trial court erred by not conducting
further inquiry into the asserted misconduct by Alternative Juror
No. One (Alternative Juror) and two other jurors. He asserts
that they discussed and prejudged the case during the defense
summation in addition to disobeying the court’s many
instructions throughout trial not to discuss the case before it was
submitted to them. (People v. Hem (2019) 31 Cal.App.5th 218,
226, 229 [trial court erred by not conducting any investigation of
four jurors discussing case in hallway].) Ostertag argues that the
court should have interviewed the three jurors and that this
failure has resulted in an incomplete record. He contends that
the error is structural, violating his constitutional rights to an
impartial jury and to due process of law pursuant to the federal
and California constitutions.
On the morning of the first day of jury deliberations,
defense counsel notified the trial court that she had received an
e-mail from Michael Booser, indicating that on the prior day, he
saw Alternate Juror speaking “indignant[ly]” with two other
female jurors in the hallway, stating, “You could decide this case
in two hours . . . But you could.”
The trial court then conducted an examination of Booser, a
retired attorney. Booser stated that he was a longtime friend of
the Ostertag family, had followed the prosecution, and had
attended some days of the trial, including voir dire. He added
that he would not have selected the Alternate Juror because she
had been the foreperson in a prior criminal trial that reached a
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verdict. Booser did not hear any response from the two female
jurors with whom the Alternate Juror spoke; he believed the two
jurors either did not listen to or disagreed with the Alternate
Juror.
Defense counsel requested that the trial court interview the
Alternate Juror. The court declined, reasoning in part that it had
just recently instructed (post hallway incident) with CALCRIM
No. 3550, regarding the manner of deliberations. The judge
stated: “I gave them the law and how to go about beginning their
deliberations apparently immediately after this incident took
place.” The court then noted that if further inquiry was
demonstrated, it would conduct one. Ostertag did not request
further inquiry.
Subsequently, the Alternate Juror did not participate in
jury deliberations. The deliberations consumed two days; the
jury acquitted Ostertag of first degree murder but convicted him
of second degree murder and dissuading a witness.
The trial court is obliged to conduct a reasonable inquiry
regarding possible juror misconduct to determine if the juror
should be discharged and whether the impartiality of other jurors
has been affected. (People v. Fuiava (2012) 53 Cal.4th 622, 702.)
The nature and extent of the inquiry is within the court’s
discretion. (Ibid.) “ ‘The specific procedures to follow in
investigating an allegation of juror misconduct are generally a
matter for the trial court’s discretion.’ ” (People v. Johnsen (2021)
10 Cal.5th 1116, 1170.)
The trial court acted within its discretion by declining
further inquiry. The evidence reflects that the Alternate Juror
made an ambiguous remark that was disregarded or not
responded to verbally by the two jurors. Booser testified that the
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two jurors appeared to disagree with or ignored the Alternate
Juror’s statement and he did not hear them speak. Following the
hallway incident (unknown at the time to the court), the court
instructed with CALRIM No. 3550, concerning the manner of
deliberations. The Alternate Juror did not serve on the jury and
the deliberations consumed two days of time. There is no
substantial likelihood of juror bias and Ostertag suffered no
prejudice from the asserted misconduct. (People v. Johnsen,
supra, 10 Cal.5th 1116, 1171.)
II.
Ostertag argues that the trial court prejudicially erred by
refusing his request for an instruction regarding involuntary
manslaughter and criminal negligence, citing People v. Brothers
(2015) 236 Cal.App.4th 24, 33-35 [a defendant may be guilty of
involuntary manslaughter when he kills without malice during
an inherently dangerous assaultive felony].) He relies upon the
evidence of his mental impairment, “acting without thinking”
when threatened, to show that he acted without either express or
implied malice. Ostertag contends that the error denies him due
process of law pursuant to the federal and California
Constitutions.
The trial court is obligated to instruct on all general
principles of law relevant to the issues raised by the evidence
regardless of a defendant’s formal request. (People v. Souza
(2012) 54 Cal.4th 90, 115.) This includes instructions on lesser-
included offenses if there is evidence that would absolve the
defendant of guilt of the greater offense but not the lesser. (Id. at
p. 116.) However, “the existence of ‘any evidence, no matter how
weak’ will not justify instructions on a lesser included offense,
but such instructions are required whenever evidence that the
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defendant is guilty only of the lesser offense is ‘substantial
enough to merit consideration’ by the jury. [Citations.]
‘Substantial evidence’ in this context is ‘ “evidence from which a
jury composed of reasonable [persons] could . . . conclude[]” ’ that
the lesser offense, but not the greater, was committed.” (People v.
Breverman (1998) 19 Cal.4th 142, 162.) Whether a reasonable
jury could have so concluded based upon the evidence in this case
is a matter we determine de novo. (People v. Cole (2004) 33
Cal.4th 1158, 1206, 1215.)
People v. Brothers, supra, 236 Cal.App.4th 24, 34, discussed
the crime of a third type of involuntary manslaughter and held:
“[A]n instruction on involuntary manslaughter as a lesser
included offense must be given when a rational jury could
entertain a reasonable doubt that an unlawful killing was
accomplished with implied malice during the course of an
inherently dangerous assaultive felony.” Malice is implied when
an unlawful killing results from a willful act, the natural and
probable consequences of which are dangerous to human life,
performed with conscious disregard for that danger. (§ 188;
People v. Elmore (2014) 59 Cal.4th 121, 133.)
Here a rational jury could not have had a reasonable doubt
that Ostertag acted with implied malice. After losing the fight
with Joseph H., Ostertag walked to the vehicle and obtained a
four-inch knife from his backpack. Determined, he also
announced that he would “kill” Joseph H. despite entreaties from
onlookers to walk away. When Daniel M. squared off with
Ostertag and the two men threw punches, Ostertag stabbed
Daniel M. in the heart, inflicting a stab wound two and one-half
inches deep. During the drive to Riverside, Ostertag stated,
“Hopefully [Daniel M. will] die so I go to jail for something that’s
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worth it.” Expert witness evidence of Ostertag’s mental deficits –
impulsiveness, inability to plan or think rationally when
threatened, reactive rather than thoughtful behavior – was
insufficient to warrant the Brothers involuntary manslaughter
instruction.
III.
Ostertag asserts that the trial court committed
instructional error by not informing the jury that it could
consider his mental impairment in determining whether he
displayed behavior reflecting consciousness of guilt. He did not
object to the instructions in the trial court, but contends that the
error affects his substantial rights and is reviewable. Ostertag
relies upon People v. McGehee (2016) 246 Cal.App.4th 1190, 1194,
1197-1200, and People v. Wiidanen (2011) 201 Cal.App.4th 526,
529-530. He argues that the error denied him due process of law
pursuant to the federal and California Constitutions and violated
his Sixth Amendment right to compulsory process.
The trial court instructed with CALCRIM No. 3428 that it
only could consider Ostertag’s mental defect or disorder for the
limited purpose of deciding whether at the time of the charged
crime he acted with the requisite mental state for the crimes
charged. The court also instructed with consciousness of guilt
instructions, CALCRIM Nos. 371 [concealing evidence,
discouraging witnesses, creating false evidence] and 372 [flight]
as well as the mental states required for each of the charged
crimes. Ostertag did not request that the court modify
CALCRIM No. 3428 to allow the jury to consider his mental
impairment as bearing upon a reasoned decision to flee or destroy
evidence.
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People v. McGehee, supra, 246 Cal.App.4th 1190, and
People v. Wiidanen, supra, 201 Cal.App.4th 526, involved
instructions that a defendant’s knowingly false statements could
be evidence of consciousness of guilt. The reviewing courts
concluded that if voluntary intoxication or mental impairment
prevented the defendant from knowing his statements were false,
the statements were not probative of his consciousness of guilt.
(McGehee, at p. 1205; Wiidanen, at p. 533.) The decisions held
that it was error to instruct with an unmodified mental
impairment instruction. Nevertheless, the error was harmless in
each case. (McGehee, at pp. 1206-1207; Wiidanen, at p. 534.)
Issues of forfeiture or failure to request modification of
CALCRIM No. 3428 aside, pursuant to any standard of review,
any error is harmless. The only reasonable inference from
Ostertag’s behavior following the stabbing is that despite any
mental impairment he suffered, he made conscious tactical
decisions to avoid detection. Immediately following the stabbing,
Ostertag fled and instructed Blake W. to drive him to Riverside.
Along the way, he telephoned Joseph H. and threatened him to
remain silent. Ostertag also attempted to remove blood from the
knife and threw it into a brush-filled creek bed. He accepted
Blake W.’s suggestion to turn off his cellular telephone to evade
detection. Unlike the mental components in People v. McGehee,
supra, 246 Cal.App.4th 1190, 1206, and People v. Wiidanen,
supra, 201 Cal.App.4th 526, 534, Ostertag’s actions to evade
detection do not have a knowledge mental component. Moreover,
Ostertag does not suggest that there are innocent or non-
incriminating explanations for his post-stabbing behavior.
CALCRIM Nos. 371 and 372 permitted but did not require the
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jury to draw inferences of consciousness of guilt from this
behavior.
IV.
Sentencing Errors
Ostertag contends that the 2020 amendment to section
667.5, subdivision (b) precludes imposition of the one-year term
because the underlying offense for the prison term was not a
sexually violent offense.2 The Attorney General concedes.
Ostertag also argues that he is entitled to an additional day of
presentence custody credit for a total of 1,348 days and the
Attorney General agrees. Accordingly, we strike the one-year
prison term imposed pursuant to section 667.5, subdivision (b),
and award Ostertag an additional day of presentence custody
credit.
Ostertag points out that the trial court found that he did
not have the financial ability to pay a restitution fine and, for
that reason, stayed the fine, expressly relying upon People v.
Dueñas (2019) 30 Cal.App.5th 1157. The court did not impose
any further fines, fees, or assessments orally, yet the abstract of
judgment disagrees. Accordingly, the abstract of judgment must
be amended to show that each of the fines, fees, and assessments
is stayed pending a later finding that Ostertag has the ability to
pay.
DISPOSITION
The trial court is directed to amend the abstract of
judgment to reflect the striking of the one-year term imposed
pursuant to section 667.5, subdivision (b); to award an additional
day of custody credit as discussed herein; and to stay the
2 The trial court struck the second prior prison term
allegation because the underlying crime is now a misdemeanor.
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imposition of any fines, fees, or assessments. The court shall
forward the amended abstract to the Department of Corrections
and Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Derek D. Malan, Judge
Superior Court County of Ventura
______________________________
Stephen M. Vasil, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Xavier Becerra, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and
David F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
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