People v. Munoz ( 2019 )

Filed 1/10/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B282323
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA106465)
v.
RYAN MUNOZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert M. Martinez, Judge. Affirmed.
Stephen Temko, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Kenneth C. Byrne and
Nicholas J. Webster, Deputy Attorneys General, for
Plaintiff and Respondent.
——————————
Defendant Ryan Munoz appeals from the judgment after a
jury convicted him of second degree murder. Munoz, while
driving under the influence of alcohol, collided with another
vehicle on the freeway, killing the passenger and injuring the
driver. The prosecution charged him with murder under a theory
of implied malice, as permitted under People v. Watson (1981)
30 Cal. 3d 290 (Watson).
On appeal, Munoz raises numerous challenges to the
trial court’s refusal to instruct the jury on any lesser included
offenses to murder. He argues that evidence adduced at the
preliminary hearing supplied the necessary elements to deem
gross vehicular manslaughter while intoxicated a lesser included
offense of murder, even if those elements were absent from the
accusatory pleading itself. He argues that the express exclusion
of vehicular homicides from the involuntary manslaughter
statute violates his constitutional rights to due process and equal
protection of the laws. Finally, he argues that the prosecution
was fundamentally unfair to structure the accusatory pleading to
deny him instructions on lesser included offenses.
In addition to his claims regarding lesser included offenses,
Munoz contends that the trial court erred by not allowing him to
contact a juror who wrote two letters to the trial court discussing
the verdict after the trial ended. Munoz also argues the trial
court unduly prejudiced him by admitting a photograph of Munoz
smiling during his arrest for the charged crime.
We conclude that binding Supreme Court authority
forecloses Munoz’s instructional challenges, that the trial court
acted within its discretion in denying Munoz access to the juror’s
contact information, and that Munoz has failed to show that
2
admission of the photograph resulted in a miscarriage of justice.
Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
We limit our summary of the evidence elicited at trial to
those facts relevant to the issues on appeal.
A. Munoz’s prior conviction for driving under the
influence of alcohol
In 2012, Munoz was convicted of driving under the
influence of alcohol. As part of Munoz’s guilty plea, the
prosecution provided in writing a Watson1 advisement stating
that “it is extremely dangerous to human life to drive while under
the influence of alcohol,” and that if Munoz “continue[d] to drive
while under the influence of alcohol . . . and as a result of [his]
driving someone is killed, [he could] be charged with murder.”
As a result of the conviction, Munoz attended a first
offenders alcohol program. Among other things, the program
taught him to avoid driving if he drank. He also attended a
victim impact panel class provided by Mothers Against Drunk
Driving (MADD), which discussed the dangers of drinking and
driving and the Watson advisement.
At trial, Munoz acknowledged on cross-examination that he
had always known to some extent that driving while intoxicated
was dangerous, and he understood this to a greater extent after
participating in the alcohol program. He also acknowledged that
he was aware from his prior conviction and the MADD class that
he could be charged for murder if he killed someone while driving
while intoxicated.
1 Watson, supra, 30 Cal. 3d 290.
3
B. The collision
In June 2014, Munoz went on a camping trip with his
extended family. One evening, beginning at about 7:00, he drank
at least three 22-ounce craft beers and some fireball whiskey. He
was planning to sleep at the campsite that night and not drive.
Later that evening, Munoz’s stepsister’s husband insulted
Munoz’s mother when she encouraged him to go to bed. Munoz
and his stepsister’s husband began arguing, shouting angrily at
one another. Munoz put his dog in his truck and drove away.
Witnesses saw Munoz driving down the freeway at a high
rate of speed, zigzagging as he changed lanes. Other cars
changed lanes to move out of his way.
Michael Mahan was driving his truck further down the
freeway at approximately 65 miles per hour. Gevork Krpikyan
was in the passenger seat. Mahan looked in his rearview mirror
and saw Munoz’s truck approaching. He yelled to Krpikyan to
“ ‘hold on’ ” and attempted to speed up. Munoz’s truck collided
with the rear of Mahan’s truck. Mahan’s truck hit the
embankment and rolled over at least three times. Krpikyan was
ejected from the truck onto the freeway, and another vehicle ran
over him. Krpikyan died from multiple traumatic injuries.
Mahan suffered injuries to his head and back, and it took him “a
couple months” to be able to walk again.
Evidence from Munoz’s truck’s event data recording system
indicated Munoz was traveling at 98 miles per hour five seconds
before the collision and 93 miles per hour one second before the
collision. Munoz had not applied the brakes immediately before
the crash.
4
C. Postcollision events
Minutes after the collision a witness saw Munoz and his
dog sitting outside of Munoz’s truck a few hundred feet away
from the collision site. Munoz’s windshield was completely
shattered. Munoz asked the witness, “ ‘What happened to the
shit I hit?’ ” Munoz “was frazzled and slurring his speech” and
the witness believed he was drunk. Munoz put his dog into the
truck and drove off towards the nearest freeway exit.
California Highway Patrol (CHP) officers detained Munoz
on a side street shortly thereafter. An officer testified that
Munoz’s breath smelled of alcohol, his eyes were “glossy,” and he
was “swaying” and “unsteady on his feet.” Munoz failed a battery
of field sobriety tests. Two preliminary alcohol screening tests
taken minutes apart measured Munoz’s blood alcohol level at
.201 percent and .202 percent. A chemical test performed at a
sheriff ’s station approximately half an hour later measured
Munoz’s blood alcohol level at .19 percent.
CHP impounded and searched Munoz’s truck, finding a
portable breathalyzer in the center console.
D. Defense expert testimony
An expert witness for the defense testified regarding “fight
or flight syndrome,” explaining that when humans experience
high stress, fear, or anger, their brains’ ability “to process
information and to make decisions . . . is greatly compromised.”
The witness testified that threats could trigger this response. He
also explained that sleep deprivation affects cognitive processes,
memory, and judgment.
5
PROCEDURE
An information charged Munoz with murder (Pen. Code,
§ 187, subd. (a))2 and leaving the scene of an accident (Veh. Code,
§ 20001, subd. (a)). The trial court dismissed the Vehicle Code
count pursuant to section 1385.
Munoz requested jury instructions on involuntary
manslaughter and gross vehicular manslaughter while
intoxicated. The trial court denied both requests.
The jury found Munoz guilty of second degree murder. The
trial court sentenced him to 15 years to life, awarded credits, and
imposed fines and fees.
Munoz timely appealed.
DISCUSSION
A. Munoz Was Not Entitled To An Instruction On Gross
Vehicular Manslaughter While Intoxicated As A
Lesser Included Offense Of Murder
Munoz argues that because he was charged with murder on
the theory that he committed a homicide while driving under the
influence of alcohol, he was entitled to an instruction on gross
vehicular manslaughter while intoxicated as a lesser included
offense. We disagree.
1. Applicable law
a. Murder and manslaughter
“Murder is the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) “[M]alice may be
2 Undesignated statutory references are to the Penal Code.
6
express or implied.” (§ 188.) Implied malice does not require an
intent to kill. (People v. Swain (1996) 12 Cal. 4th 593, 602.)
Instead, it is demonstrated by “ ‘both a physical and a mental
component. The physical component is satisfied by the
performance of “an act, the natural consequences of which
are dangerous to life.” [Citation.] The mental component is
the requirement that the defendant “knows that his conduct
endangers the life of another and . . . acts with a conscious
disregard for life.” [Citation.]’ ” (People v. Chun (2009)
45 Cal. 4th 1172, 1181.)
Under certain circumstances, malice may be implied when
a defendant kills someone while willfully driving under the
influence of alcohol, thus subjecting the defendant to a charge of
murder. (See People v. Wolfe (2018) 20 Cal.App.5th 673, 681
(Wolfe)). This is “colloquially known as a Watson murder” after
Watson, supra, 30 Cal. 3d 290. (Wolfe, supra, 20 Cal.App.5th at
p. 677.) Among other things, conviction on this basis requires a
showing that the defendant had a subjective, actual awareness of
the risk presented by his or her conduct. (Watson, at pp. 296-
297.) Opinions affirming convictions under this principle have
relied on a number of factors present in Watson, including
“ ‘(1) blood-alcohol level above the .08 percent legal limit;
(2) a predrinking intent to drive; (3) knowledge of the hazards
of driving while intoxicated; and (4) highly dangerous driving.’ ”
(Wolfe, at pp. 682-683.) “However, ‘nowhere does the opinion
in Watson state that all of the factors present in that case
are necessary to a finding of second degree murder.’ ”
(Wolfe, at p. 683.)
Involuntary manslaughter “is the unlawful killing of a
human being without malice,” occurring “in the commission of an
7
unlawful act, not amounting to a felony; or in the commission of a
lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection.” (§ 192, subd. (b).)
Involuntary manslaughter “is punishable by
imprisonment . . . for two, three, or four years.” (§ 193, subd. (b).)
The Penal Code states expressly that involuntary
manslaughter does “not apply to acts committed in the driving of
a vehicle.” (§ 192, subd. (b).) Instead, section 192, subdivision (c)
defines “vehicular” manslaughter, which generally mirrors the
language of the involuntary manslaughter provision but adds the
element of “driving a vehicle” and imposes different penalties
depending on the level of negligence involved. A defendant
convicted of vehicular manslaughter with gross negligence may
be imprisoned in county jail for not more than one year, or in
state prison for two, four, or six years. (§ 193, subd. (c)(1).) A
defendant convicted of vehicular manslaughter without gross
negligence may be imprisoned in county jail for not more than
one year. (Id., subd. (c)(2).)3
The Penal Code also defines vehicular manslaughter while
intoxicated. (§ 191.5.) This offense requires that, in addition to
satisfying the elements of vehicular manslaughter, the defendant
be driving in violation of sections 23140, 23152, or 23153 of the
Vehicle Code, which pertain to driving under the influence of
alcohol or drugs. (§ 191.5, subds. (a), (b).) A defendant who
violates this statutory provision with gross negligence may be
3 A third category of vehicular manslaughter applies when
the vehicular accident “was knowingly caused for financial gain,”
such as to give rise to a “false or fraudulent claim.” (§§ 192,
subd. (c)(3), 550, subd. (a)(3).) This category is not at issue in this
appeal.
8
imprisoned for four, six, or ten years, and without gross
negligence for 16 months or two or four years. (Id., subd. (c)(1),
(2).) Section 191.5 expressly does not prohibit or preclude a
charge of murder on a theory of implied malice. (Id., subd. (e).)
b. Lesser included offenses
“Generally, when a defendant is charged with a crime,
the trial court must instruct the jury on any lesser included
offenses that are supported by the evidence.” (Wolfe, supra,
20 Cal.App.5th at p. 684, citing People v. Breverman (1998)
19 Cal. 4th 142, 154 (Breverman).) Courts have “applied two tests
in determining whether an uncharged offense is necessarily
included within a charged offense: the ‘elements’ test and the
‘accusatory pleading’ test. Under the elements test, if the
statutory elements of the greater offense include all of the
statutory elements of the lesser offense, the latter is necessarily
included in the former. Under the accusatory pleading test, if the
facts actually alleged in the accusatory pleading include all of the
elements of the lesser offense, the latter is necessarily included in
the former.” (People v. Reed (2006) 38 Cal. 4th 1224, 1227-1228
(Reed).)
Involuntary manslaughter is a lesser included offense of
murder; thus, a trial court must instruct the jury on involuntary
manslaughter “[i]f the evidence presents a material issue of
whether a killing was committed without malice, and if there is
substantial evidence defendant committed involuntary
manslaughter.” (People v. Cook (2006) 39 Cal. 4th 566, 596.)
If a defendant is charged with murder caused by driving a
vehicle while intoxicated, however, a trial court cannot give an
involuntary manslaughter instruction, because the alleged killing
was an “act[ ] committed in the driving of a vehicle” exempt from
9
the involuntary manslaughter statute. (§ 192, subd. (b);
see Wolfe, supra, 20 Cal.App.5th at pp. 685-686.) Thus,
section 192, subdivision (b) effectively eliminates involuntary
manslaughter as a lesser included offense of murder when
“committed in the driving of a vehicle.” (§ 192, subd. (b).)
Our Supreme Court has held that gross vehicular
manslaughter while intoxicated also is not a lesser included
offense of murder under the statutory elements test.
(People v. Sanchez (2001) 24 Cal. 4th 983 (Sanchez).) In Sanchez,
the defendant killed someone in a motor vehicle accident while
intoxicated, and a jury convicted him of both murder and gross
vehicular manslaughter while intoxicated. (Id. at pp. 985-986.)
On appeal, the court addressed whether the manslaughter charge
was a lesser included offense of murder, in which case the
defendant could not be convicted of both. (See id. at p. 987 [“A
defendant . . . cannot be convicted of both an offense and a lesser
offense necessarily included within that offense, based upon his
or her commission of the identical act”].) The court upheld the
dual convictions. (Id. at p. 988.) It reasoned that “the statutory
elements of murder do not include all the elements” of gross
vehicular manslaughter while intoxicated, because the latter
“requires proof that the homicide was committed ‘in the driving of
a vehicle’ and that the driving was in violation of specified
Vehicle Code provisions prohibiting driving while intoxicated.”
(Id. at p. 989.) Thus, “[a]lthough as a factual matter, a murder
may be carried out by means of a vehicle and by an intoxicated
driver, in the abstract it obviously is possible to commit a murder
without committing gross vehicular manslaughter while
intoxicated.” (Id. at p. 988.)
10
While Sanchez addressed the question of lesser included
offenses in the context of dual convictions, the test it applied is
identical to that applied in cases involving instructions on lesser
included offenses. (See, e.g., People v. Birks (1998) 19 Cal. 4th
108, 117-118 (Birks)). Thus, its reasoning compels the conclusion
that a trial court is not required to instruct on gross vehicular
manslaughter while intoxicated as a lesser included offense to
murder. (See Wolfe, supra, 20 Cal.App.5th at p. 686.)
2. Analysis
Munoz argues that Sanchez only applied the statutory
elements test, not the accusatory pleading test, and that under
this latter test the trial court should have deemed gross vehicular
manslaughter while intoxicated a lesser included offense of
murder and instructed the jury accordingly. Munoz’s
characterization of the holding of Sanchez is correct; the
Supreme Court mentioned both the elements test and the
accusatory pleading test but conducted its analysis solely by
comparing “the statutory elements of the crimes involved,” with
no reference to the accusatory pleading. (Sanchez, supra, 24
Cal.4th at p. 988; see also Reed, supra, 38 Cal.4th at p. 1228
[accusatory pleading test unnecessary to holding of Sanchez].)
The accusatory pleading in this case is of no aid to Munoz.
The pleading stated, in relevant part, “On or about June 28,
2014, in the County of Los Angeles, the crime of MURDER, in
violation of PENAL CODE SECTION 187(a), a Felony, was
committed by RYAN MUNOZ, who did unlawfully, and with
malice aforethought murder GEVORK KRPIKYAN, a human
being.” Munoz does not dispute that this does little more than
repeat the statutory definition of murder from the Penal Code,
and does not supply the additional elements that would
11
encompass gross vehicular manslaughter while intoxicated,
namely the use of a vehicle and intoxication. (Cf. People v.
Marshall (1957) 48 Cal. 2d 394, 405-406 [allegation in information
that defendant took automobile during robbery established
unlawful driving or taking of vehicle as lesser included offense].)
Munoz argues that “[a]lthough the prosecution declined to
include the allegation of drunk driving in the Information,” the
prosecution in effect charged him with driving under the
influence of alcohol “as the predicate act for implied malice
murder” under Watson. He cites to the transcript of the
preliminary hearing, in which the trial court found probable
cause to charge Munoz with implied malice murder based on the
fact that Munoz had driven while intoxicated despite having been
convicted of doing so earlier and attending classes that taught
him the dangers of such conduct. Munoz notes also that the
trial court, when instructing the jury on the elements of murder,
stated that “[t]he act or acts the prosecution is relying on to prove
implied malice aforethought for murder is the driving a motor
vehicle while under the influence of alcohol in violation of
[Vehicle Code section 23152, subdivisions (a) and (b)],” and
provided instructions for those two Vehicle Code offenses as well.
We do not disagree that, based on the preliminary hearing
and jury instructions, the prosecution could not secure a murder
conviction under the circumstances of this case without proving
beyond a reasonable doubt that Munoz drove while intoxicated.
The Supreme Court has indicated repeatedly, however, that
when applying the accusatory pleading test to determine
whether one offense is necessarily included in another, courts
do not look to evidence beyond the actual pleading and its
allegations regarding the purported greater offense. (See, e.g.,
12
People v. Banks (2014) 59 Cal. 4th 1113, 1160 (Banks) [“When
applying the accusatory pleading test, ‘[t]he trial court need
only examine the accusatory pleading’ ”], overruled in part by
People v. Scott (2015) 61 Cal. 4th 363, 391; accord, People v. Smith
(2013) 57 Cal. 4th 232, 244; see also People v. Montoya (2004)
33 Cal. 4th 1031, 1036 (Montoya) [“Consistent with the primary
function of the accusatory pleading test—to determine whether a
defendant is entitled to instruction on a lesser uncharged
offense—we consider only the pleading for the greater offense”].)4
Indeed, in cases such as this one in which “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, emphasis added; see also People v. Shockley (2013)
58 Cal. 4th 400, 404 [“because the information . . . simply tracked
[the statutory] language without providing additional factual
allegations, we focus on the elements test”].)
The Supreme Court has explained the importance of
limiting analysis of lesser included offenses to the statutory
elements and language of the accusatory pleading to “promote[ ]
consistency in application” and “ease[ ] the burden on both the
trial courts and the reviewing courts.” (People v. Ortega (Ernesto)
(1998) 19 Cal. 4th 686, 698 (Ortega (Ernesto)).) In Ortega
4 In Montoya, the Supreme Court held that under the
accusatory pleading test, the unlawful taking of a vehicle
was not a lesser included offense of carjacking where the
accusatory pleading did not allege that the vehicle was taken
without the owner’s consent. (Montoya, supra, 33 Cal.4th
at p. 1036.)
13
(Ernesto), the court rejected the analysis of lesser included
offenses in People v. Rush (1993) 16 Cal. App. 4th 20 (Rush). It
reasoned that the Court of Appeal in Rush erred by considering
both “the language of the information and the evidence
introduced at the preliminary hearing” in making its
determination.5 (Ortega (Ernesto), at pp. 697-698.) “Basing this
determination upon the evidence would require trial courts to
consider whether the particular manner in which the charged
offense allegedly was committed created a sua sponte duty to
instruct that the defendant also may have committed some other
offense. In order to determine whether the trial court proceeded
correctly, a reviewing court, in turn, would be required to scour
the record to determine which additional offenses are established
by the evidence underlying the charged offenses, rather than to
look simply to the elements of the offenses and the language of
the accusatory pleading.” (Id. at p. 698.) The Supreme Court
later expressly disapproved Rush to the extent it conflicted with
the rule that courts “consider only the pleading for the greater
offense” when applying the accusatory pleading test. (Montoya,
supra, 33 Cal.4th at p. 1036 & fn. 4.)
Munoz claims we properly may consider evidence from
the preliminary hearing under an “expanded” accusatory
pleading test as articulated in People v. Ortega (Andrew)
(2015) 240 Cal. App. 4th 956, 967 (Ortega (Andrew)), a case
decided by the Sixth District Court of Appeal. In Ortega
(Andrew), the accusatory pleading charged the defendant with
5 Despite the “flawed reasoning” of Rush, the
Supreme Court agreed with its ultimate holding that grand theft
is a lesser included offense of robbery. (Ortega (Ernesto), supra,
19 Cal.4th at pp. 697-698.)
14
sexual penetration by force, “[r]eferencing only the statutory
elements of the offense.” (Id. at p. 960.) On appeal, the
defendant argued that he was entitled to an instruction on
sexual battery as a lesser included offense. (Id. at p. 965.)
The Court of Appeal held that sexual battery was not a lesser
included offense under the statutory elements test, because
sexual battery required the offender to touch the victim with a
part of his or her body, whereas sexual penetration by force was
broader and encompassed, for example, use of a “foreign object.”
(Id. at p. 967.) Thus, it was possible to commit the greater
offense without necessarily committing the lesser. (Ibid.)
The court concluded, however, that sexual battery was a
lesser included offense under an “expanded accusatory pleading
test” that looked not just to the pleading itself, but to the
“evidence adduced at the preliminary hearing” as well, which
established the defendant had penetrated the victim with his
fingers. (Ortega (Andrew), supra, 240 Cal.App.4th at p. 967.)
The court reasoned that under the current pleading standard, the
accusatory pleading need state nothing more than the statutory
language; because this was insufficient to apprise the defendant
fully of the details of the charges against him, however, due
process required that the defendant also receive the transcript
from the preliminary hearing. (Id. at p. 969.) Thus, “[t]he
transcript is integral to the accusatory procedure because,
consistent with a defendant’s due process right to notice, a
defendant cannot be prosecuted for an offense not shown at the
preliminary hearing to have been committed.” (Ibid.) Given that
“the prosecutor was bound by the preliminary hearing testimony
to prove that defendant digitally penetrated [the victim’s]
vagina,” “felony sexual battery was necessarily a lesser included
15
offense of forcible sexual penetration, and it would be unjust to
allow the prosecutor, by controlling the language in the charging
document, to also control whether the jury considers that lesser
offense.” (Id. at p. 970.)
We respectfully decline to follow Ortega (Andrew), which
did not discuss Ortega (Ernesto) or Montoya and their disapproval
of the analysis in Rush, a case in which the Court of Appeal
considered the preliminary hearing evidence just as Ortega
(Andrew) advocated. Ortega (Andrew) also did not discuss the
many Supreme Court cases cited above, stating that the
accusatory pleading test looks solely to the language of the
pleading itself. (See, e.g., Banks, supra, 59 Cal.4th at p. 1160.)
Nor did Ortega (Andrew) account for the practical concerns raised
in Ortega (Ernesto) that an expanded accusatory pleading test
would lead to inconsistent application and additional burden on
the courts. (See Ortega (Ernesto), supra, 19 Cal.4th at p. 698.)
The only reported case citing Ortega (Andrew) declined to adopt
the expanded accusatory pleading test, concluding, as do we, that
it was contrary to Montoya and other Supreme Court authority.
(See People v. Macias (2018) 26 Cal.App.5th 957, 964.)
Munoz argues, in line with Ortega (Andrew), that if the
preliminary hearing transcript is not considered part of the
accusatory pleading, then he did not receive adequate notice of
the charges against him, in violation of his due process rights.
He also argues that because an information properly can include
nothing more than the statutory language of the charged
offenses, the accusatory pleading test “is eliminated as a separate
test” unless courts consider the additional allegations from the
preliminary hearing. Whatever the merit of these arguments, on
which we express no opinion, we are bound by Supreme Court
16
authority (see Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal. 2d 450, 455), which makes clear that we are not to look
beyond the language of the accusatory pleading itself in
assessing lesser included offenses.
Munoz argues we are not bound by the holding of Montoya
because it applied the accusatory pleading test to determine the
propriety of multiple convictions (Montoya, supra, 33 Cal.4th
at pp. 1035-1036), an application later rejected in Reed, supra,
38 Cal.4th at p. 1229.6 Montoya states, however, that its rule
that courts should consider only the accusatory pleading for the
greater offense is “[c]onsistent with the primary function of the
accusatory pleading test—to determine whether a defendant is
entitled to instruction on a lesser uncharged offense.” (Montoya,
at p. 1036.) Thus, Montoya intended its rule not only to apply in
the context of multiple convictions, but also in the context of
determining whether instructions on a lesser offense were
warranted. Here, we invoke it for the latter purpose.
B. Due Process Did Not Require The Trial Court To
Instruct On Involuntary Manslaughter
Munoz argues that the statutory scheme eliminating
involuntary manslaughter as a lesser included offense of an
implied malice murder when committed by an intoxicated
driver violates his right to due process under the
6 Montoya questioned whether the accusatory pleading test
was appropriate in the context of determining whether a
defendant could be convicted of two crimes, but declined to
resolve the question because in that case the accusatory pleading
test did not aid the defendant. (Montoya, supra, 33 Cal.4th at
pp. 1035-1036.)
17
Fourteenth Amendment to the United States Constitution.
We disagree.
1. Munoz did not have a fundamental right to an
involuntary manslaughter instruction
“ ‘ “Unless application of a statute impinges upon
‘fundamental rights,’ ” ’ ” it survives a substantive due process
challenge so long as “ ‘ “the application is procedurally fair and
reasonably related to a proper legislative goal.” ’ ” (Barnes v.
Superior Court (2002) 96 Cal. App. 4th 631, 641, fn. 7 (Barnes).) A
right is “fundamental” if it is “ ‘ “deeply rooted in this Nation’s
history and tradition,” . . . and “implicit in the concept of ordered
liberty,” such that “neither liberty nor justice would exist if [it
was] sacrificed.” ’ ” (Jimenez v. County of Los Angeles (2005)
130 Cal. App. 4th 133, 142 (Jimenez).)
Munoz contends that “the right to an instruction on a lesser
include[d] offense is fundamental, for due process purposes,
because it impacts a criminal defendant’s right to have [a] jury
determine all material issues in the case.” Munoz claims that by
eliminating involuntary manslaughter as a lesser included
offense of murder committed in the driving of a vehicle, the law
did not allow the jury to consider the full range of options for
conviction, thus leaving the jury with “an all-or-nothing choice”
between murder and acquittal. He claims that “the law
encouraged the jury to find [him] guilty of murder so that he
would not get away totally free.”
Munoz quotes People v. Barton (1995) 12 Cal. 4th 186
(Barton), in which our Supreme Court addressed the trial court’s
obligation to instruct on lesser included offenses. The court
explained that, because “[t]ruth may lie” somewhere between the
defendant’s claim of innocence and the prosecution’s assertion of
18
guilt of the charged crime, “[a] trial court’s failure to inform the
jury of its option to find the defendant guilty of the lesser offense
would impair the jury’s truth-ascertainment function.
Consequently, neither the prosecution nor the defense should be
allowed, based on their trial strategy, to preclude the jury from
considering guilt of a lesser offense included in the crime
charged. To permit this would force the jury to make an ‘all or
nothing’ choice between conviction of the crime charged or
complete acquittal, thereby denying the jury the opportunity to
decide whether the defendant is guilty of a lesser included offense
established by the evidence.” (Id. at p. 196.)
We disagree that the principles articulated in Barton
constitute fundamental rights for purposes of due process
analysis. It is true a defendant has the right to instructions on
lesser included offenses under California law, and that the right
has been tied to the state constitutional right “ ‘to have the jury
determine every material issue presented by the evidence.’ ”
(Breverman, supra, 19 Cal.4th at p. 153.) Breverman held,
however, that the right to instructions on lesser included offenses
“arises from California law alone” (id. at p. 149), and noted “the
United States Supreme Court has expressly refrained from
recognizing a federal constitutional right to instructions on lesser
included offenses in noncapital cases” (id. at p. 165).
On this basis, the Fourth District Court of Appeal recently
held that an intoxicated driver charged with murder had “no
fundamental constitutional right to have the jury instructed as to
a manslaughter charge” even if it were a lesser included offense.
(Wolfe, supra, 20 Cal.App.5th at p. 688.) We similarly decline to
consider the right to instructions on lesser included offenses
“ ‘ “implicit in the concept of ordered liberty” ’ ” (Jimenez, supra,
19
130 Cal.App.4th at p. 142) when neither the United States nor
California Supreme Court has interpreted the federal
Constitution to require it. Thus, to the extent Munoz would have
been entitled to an instruction on involuntary manslaughter but
for the exclusion for vehicle-related homicides under section 192,
subdivision (b), the Legislature did not infringe upon a
fundamental right by enacting that statutory provision.
2. The vehicular manslaughter statutes are
reasonably related to a proper legislative goal
Because the law at issue here does not implicate a
fundamental right, we consider whether “ ‘ “the application is
procedurally fair and reasonably related to a proper legislative
goal.” ’ ” (Barnes, supra, 96 Cal.App.4th at p. 641, fn. 7.) Under
this analysis, “[t]he enactment should not be unreasonable,
arbitrary, or capricious. [Citation.] The wisdom of the
legislation, however, is not at issue, and neither the availability
of less drastic remedial alternatives nor the legislative failure
to solve all related ills at once will invalidate a statute.”
(People v. Superior Court (Johnson) (2004) 120 Cal. App. 4th 950,
958 (Johnson).)
Here, the Legislature reasonably could distinguish
unintentional homicides committed in the driving of a
vehicle from other unintentional homicides. Motor vehicles
are a “leading cause of accidental deaths” in this country.
(Motor Vehicle Mfrs. Ass’n v. State Farm Mut. (1983) 463 U.S. 29,
33.) Our Supreme Court expressly has identified deterrence of
driving under the influence of alcohol as “a highly important
governmental interest.” (Ingersoll v. Palmer (1987) 43 Cal. 3d
1321, 1338.)
20
Given the prevalence of deaths caused by motor vehicle
accidents, the Legislature reasonably could conclude that the
general involuntary manslaughter statute did not account
sufficiently for the varying circumstances and levels of culpability
(e.g. gross negligence, intoxication) arising in this all-too-common
occurrence. The Legislature thus reasonably could define
separate vehicular manslaughter offenses, with a wider range of
penalties than would be available under the general involuntary
manslaughter statute. (Compare §§ 191.5, subds. (c)(1), (2), 193,
subds. (b), (c)(1), (2).) The Legislature reasonably could add
additional elements to the vehicular manslaughter statutes, such
as “driving a vehicle,” to distinguish them from involuntary
manslaughter. Having created a specific statutory scheme
directed at unintentional vehicular homicides, the Legislature
also reasonably could exclude vehicular homicides from the
general involuntary manslaughter statute.
Munoz argues the exclusion of vehicular homicides from
the involuntary manslaughter statutory provision is arbitrary
and capricious. He states that he “recognizes that an automobile
can wreak serious havoc and that car accidents are a major cause
of death in this [country], but that should not justify denying a
criminal defendant the opportunity to be convicted of a lesser
included offense, particularly when the lesser crime is more
commensurate with his guilt.” He points out that the Legislature
has not precluded instructions on voluntary manslaughter for
vehicular homicides, and argues it is illogical to permit voluntary
manslaughter as a lesser included offense but not involuntary
manslaughter.
Munoz’s arguments suggest that the Legislature’s intention
in creating the separate vehicular manslaughter statutes was to
21
exclude manslaughter as a lesser included offense of a Watson
murder. Even assuming this was the Legislature’s intent, we are
doubtful the statutory scheme would be unconstitutional, given
that a defendant has no fundamental right to instructions on
lesser offenses.
We, however, need not decide that question. As we have
explained, there is another valid rationale for creating the
separate vehicular manslaughter statutes, namely to create a
wider range of penalties for an all-too-common form of homicide.
The fact that, as a consequence of this statutory scheme, courts
no longer must instruct on either involuntary or vehicular
manslaughter as a lesser included offense of a Watson murder
does not render the scheme invalid. In the absence of
infringement on a fundamental right, the Legislature may
address a problem as it sees fit despite the “availability of less
drastic remedial alternatives.” (Johnson, supra, 120 Cal.App.4th
at p. 958.)
C. The Trial Court Did Not Violate Munoz’s Right To
Equal Protection Under The Laws By Refusing To
Instruct On Involuntary Manslaughter
Munoz argues that excluding vehicular homicides from the
involuntary manslaughter statute violates his right to equal
protection under the laws. He asserts there is “no adequate
justification” to treat him differently from others who commit
implied malice murder with some instrumentality other than a
vehicle, and therefore have involuntary manslaughter available
as a lesser included offense if supported by the evidence. The
analysis of this challenge is not materially different from the
analysis of Munoz’s due process challenge, and we similarly hold
Munoz has failed to show a constitutional violation.
22
“Equal protection of the laws means that similarly situated
persons shall be treated similarly unless there is a sufficiently
good reason to treat them differently.” (People v. Castel (2017)
12 Cal.App.5th 1321, 1326.) In evaluating an equal protection
challenge, we first determine “whether there are two groups of
individuals who are ‘ “ ‘similarly situated with respect to the
legitimate purpose of the law’ ” ’ but are being treated
differently.” (Ibid.) “[I]f these threshold requirements are met, a
court must next ascertain whether the Legislature has a
constitutionally sufficient reason to treat the groups differently.”
(Ibid.) As a general matter, laws “will be upheld as long as there
is any ‘ “ ‘rational relationship between the disparity of treatment
and some legitimate governmental purpose,’ ” ’ even if the
rational basis for that law was never articulated by—or even
relied on by—the Legislature.” (Id. at p. 1327.) However, if the
law “affects a fundamental right,” or the groups the law treats
differently are “members of a ‘suspect class’ (such as race,
national origin, gender, or illegitimacy, to name a few),” courts
will subject it to heightened scrutiny. (Id. at pp. 1326-1327.)
We will assume for the sake of argument that defendants
charged with Watson murder are similarly situated to defendants
charged with other forms of implied malice murder, and that the
law treats them differently. Munoz’s equal protection challenge
nonetheless fails for the same reasons his due process challenge
fails. As we have explained, exclusion of manslaughter as a
lesser included offense of Watson murder does not implicate a
fundamental right, and Munoz does not claim to be a member of
a suspect class. As we have also explained, the vehicular
manslaughter statutes are reasonably related to the legitimate
legislative purpose of providing a wider and more nuanced range
23
of penalties given the ubiquity of automobiles and the resulting
deaths caused by motorists. In short, the vehicular
manslaughter statutes, and the corresponding exclusion of
vehicular homicides from the involuntary manslaughter statute,
do not violate Munoz’s right to equal protection of the laws.
D. The Prosecution Was Within Its Discretion
To Charge Munoz With Murder Only And Refuse
To Consent To An Instruction On Gross Vehicular
Manslaughter While Intoxicated
Munoz argues that it was fundamentally unfair for the
prosecution to charge him with a Watson murder, then deny him
a manslaughter instruction as a lesser included offense by
omitting allegations of drinking and driving from the
information. Munoz also objects that the prosecution refused to
consent to an instruction on manslaughter as a lesser related
offense. Munoz characterizes this as “manipulation of the
charging procedures.” We disagree.
A prosecutor has broad discretion when selecting which
offenses to charge, and “[t]he courts do not generally supervise
these ‘purely prosecutorial function[s].’ ” (People v. Ceja (2010)
49 Cal. 4th 1, 7, second alteration in original.) Even when two
different statutes prescribe different punishments for the same
conduct, a prosecutor may, without violating constitutional
principles, choose to charge under one and not the other absent
a “showing that a defendant ‘has been singled out deliberately
for prosecution on the basis of some invidious criterion.’ ”
(People v. Wilkinson (2004) 33 Cal. 4th 821, 838-839 [prosecutor’s
decision to charge the defendant with battery on a custodial
officer without injury instead of battery on a custodial officer with
injury where the former charge arguably carried stiffer
24
punishment did not violate equal protection].) Having held that
the charging scheme for Watson murder and vehicular
manslaughter complies with constitutional due process and equal
protection requirements, it would be anomalous for us to conclude
that the prosecution ran afoul of those requirements by
exercising its discretion within that approved scheme.
It is also well established that, absent the prosecution’s
consent, a defendant cannot compel the trial court to instruct on
an uncharged lesser offense not necessarily included in a charged
offense, even if the lesser offense “bear[s] some conceptual and
evidentiary ‘relationship’ ” to the greater offense. (Birks, supra,
19 Cal.4th at p. 112; People v. Rangel (2016) 62 Cal. 4th 1192,
1230 [“ ‘[I]nstruction on a lesser related offense is proper only
upon the mutual assent of the parties.’ ”].) Among its reasons for
this rule, Birks stated that “[o]nce the relative precision of
necessary inclusion is left behind, the parties and the courts are
cast adrift in a trackless sea,” with “no clear standards for
determining” when a court must instruct on a lesser related
offense. (Birks, at p. 131.) The court cautioned that “[t]his leaves
an accused potentially infinite latitude to argue a sufficient link”
justifying an instruction. (Ibid.)
Munoz’s argument asks us to cast ourselves into Birks’s
“trackless sea” to determine if, based on the evidence in a given
case, the prosecution in fairness should have charged additional
crimes or consented to additional instructions. This is no
different than requiring trial courts to review the record and
instruct on uncharged but not necessarily included offenses
supported by the evidence, something clearly not permitted under
Birks. While in a particular case it might be relatively
straightforward to determine what other offenses the evidence
25
supports—in the instant case, for example, there is no doubt the
prosecution intended to prove that Munoz committed murder as a
result of drinking and driving—the Birks rule necessarily rejects
a case-by-case analysis.
Munoz concedes that no case has “definitively decided” that
the prosecution “violates due process of law when it deliberately
omits allegations in the pleading instrument to preclude
instructions on lesser included offenses or to permit multiple
convictions,” but argues that some cases have so suggested. He
cites Montoya, in which the Supreme Court held that the
accusatory pleading in that case did not “include the requisite
allegations” for the lesser offense of unlawful taking of a vehicle
to be necessarily included in the greater offense of carjacking.
(Montoya, supra, 33 Cal.4th at p. 1036.) Following this
conclusion, the court stated in a footnote that “[n]othing before us
suggests that the prosecutor deliberately omitted information
from the allegations for carjacking so as to avoid including the
facts necessary for the unlawful taking of a vehicle and to thereby
subject defendant to conviction for both offenses.” (Id. at p. 1036,
fn. 5.)
This footnote says nothing more than there was no
evidence of deliberate omission before the court, and therefore
the court was, at most, leaving that issue for another day. It does
not compel the conclusion that a prosecutor’s deliberate omission
of allegations is improper.
Munoz also cites Ortega (Andrew), which, among the
reasons in support of its expanded accusatory pleading test,
stated that “it would be unjust to allow the prosecutor, by
controlling the language in the charging document, to also control
whether the jury considers [a] lesser offense” established by
26
evidence at the preliminary hearing. (Ortega (Andrew), supra,
240 Cal.App.4th at p. 970.) As we have discussed, we respectfully
submit that the reasoning and holding of Ortega (Andrew) are
contrary to established Supreme Court authority, and we decline
to follow it.
E. The Trial Court Did Not Abuse Its Discretion By
Denying Munoz Juror Contact Information After The
Trial
Munoz argues that a letter sent by a juror to the trial court
after trial showed evidence of undue influence on the verdict, and
that the trial court abused its discretion by not providing the
juror’s contact information to Munoz’s counsel for further
investigation. We disagree.
1. Additional factual background
The trial court received two letters from a juror (Juror Two)
after trial ended. The first was dated October 21, 2016,
approximately three weeks after the jury entered its verdict. The
letter expressed Juror Two’s desire “to discuss the reasoning that
led to my verdict.” (Underlining omitted.) Juror Two wrote,
“I went into the courtroom wanting to find [Munoz] not guilty.
During the whole trial, I was looking for a ‘loophole’ that would
allow such a verdict!” The letter asked the trial court for “an
opinion on the reasoning that led to my decision.” The letter
went on to detail Juror Two’s thoughts about the verdict and the
reasoning underlying it, and concluded by inviting the trial judge
to meet for coffee. The second letter, dated November 22, 2016,
asked for further explanation about one of the jury instructions
pertaining to when a criminal act begins.
27
The trial court provided copies of the letters to the parties
with Juror Two’s identifying information redacted. Munoz filed a
petition requesting Juror Two’s address and telephone number,
arguing the letters contained evidence of juror misconduct
relevant to Munoz’s motion for a new trial. The trial court denied
the petition, finding that “the letters essentially are a narrative
of the challenges that occur in virtually every deliberation
process” and that Juror Two’s “remarks do not constitute
recognized juror misconduct.”
2. Applicable law
Following the recording of a jury’s verdict in a criminal
trial, the trial court must seal the record of “personal juror
identifying information,” including “names, addresses, and
telephone numbers.” (Code Civ. Proc., § 237, subd. (a)(2).) “Any
person may petition the court for access to these records” upon a
“prima facie showing of good cause for the release of the” juror
information. (Id., subd. (b).) This showing must “ ‘support a
reasonable belief that jury misconduct occurred, that diligent
efforts were made to contact the jurors through other means,
and that further investigation is necessary to provide the court
with adequate information to rule on a motion for new trial.’ ”
(People v. Carrasco (2008) 163 Cal. App. 4th 978, 990 (Carrasco).)
“Good cause does not exist where the allegations of jury
misconduct are speculative, conclusory, vague, or unsupported.”
(People v. Cook (2015) 236 Cal. App. 4th 341, 346 (Cook).)
“ ‘Absent a satisfactory, preliminary showing of possible juror
misconduct, the strong public interests in the integrity of our jury
system and a juror’s right to privacy outweigh the countervailing
public interest served by disclosure of the juror information.’ ”
(Carrasco, at p. 990.) We review a trial court’s denial of a
28
petition for the release of juror information for abuse of
discretion. (Id. at p. 991.)
3. Analysis
Munoz identifies two sections of the first letter which he
claims show evidence of juror misconduct. The first section
stated that “[f]rom the very beginning, I knew [Munoz] was not
‘an innocent!’ His prior history speaks for [itself]. He has broken
more laws than I know of and deserves to be held accountable
and punished. But still, I didn’t want to find him guilty! I looked
for any loophole that I could use to deliver a different verdict.”
(Italics, boldface, and underlining omitted.)
Munoz argues this section of the letter establishes
misconduct in three ways. First, he claims the juror “prejudged
the case and applied the reasonable doubt [standard] in reverse
order” by presuming Munoz to be guilty from the outset. Second,
he claims Juror Two improperly considered Munoz’s “past crimes
to support the guilty verdict.” Third, he argues Juror Two “relied
on false information” because Munoz’s purported past crimes
were in fact misdemeanor Vehicle Code violations.
Other sections of the letter, however, contradict Munoz’s
interpretation. Towards the end of the letter Juror Two wrote, “I
found [Munoz] guilty, not because he was driving intoxicated, but
because he made a conscious decision to break the law; he was on
parole and he knew he had the prior DUI! He should be held
accountable, for his decisions, when he had the mental facilities
to act lawfully. He willfully chose not [to].” (Underlining
omitted.) This clarifies that, to the extent Juror Two took into
account Munoz’s past acts, it was in the context of Munoz’s
knowledge of the perils and illegality of driving while intoxicated,
a proper factor in assessing implied malice under Watson.
29
(See Wolfe, supra, 20 Cal.App.5th at pp. 682-683.) There is no
indication that Juror Two prejudged that Munoz was guilty of
murder. Indeed, Juror Two states in the first paragraph of the
first letter that he or she “went into the courtroom wanting to
find [Munoz] not guilty.” Juror Two’s assessment that Munoz
was “not ‘an innocent’ ” appears to refer to Juror Two’s correct
conclusion that Munoz previously had broken laws prohibiting
driving while intoxicated. (Italics and boldface omitted.)
In the second section of the letter identified by Munoz,
Juror Two wrote, “Some of us did entertain reasonable doubt, but
most found [Munoz] guilty more because of their reaction to the
brutal death of [Krpikyan] and not, necessarily, the details of the
Law! [My opinion’].” (Final brackets and apostrophe in original.)
Munoz argues this indicates that “the emotional nature of the
case may have improperly swayed the jury’s verdict.”
The trial court, in denying Munoz’s request to release juror
information, identified the above section of the letter as “[t]he
closest thing to misconduct,” but noted Juror Two’s statement
that it was Juror Two’s “opinion,” with no specific details in
support. We agree with the trial court that Juror Two’s opinion
alone, with no additional evidence, is “speculative” and
“unsupported,” and the trial court did not abuse its discretion in
finding it insufficient to establish good cause to release sealed
juror information. (Cook, supra, 236 Cal.App.4th at p. 346;
see also People v. Danks (2004) 32 Cal. 4th 269, 302 [declarations
pertaining to “ ‘ “subjective reasoning processes of the individual
juror” ’ ” inadmissible to prove juror misconduct; “ ‘ “[t]his
limitation prevents one juror from upsetting a verdict of the
whole jury by impugning his own or his fellow jurors’ mental
processes or reasons for assent or dissent” ’ ”].)
30
Munoz argues that Juror Two forfeited any right to privacy
by writing to the trial court and requesting to meet with the
judge. We disagree. In writing the letter to the trial court,
Juror Two did not reveal his or her contact information to anyone
who did not already have it. The letters were not directed to the
parties, who obtained the letters from the trial court with the
identifying information redacted. The trial court did not abuse
its discretion by preserving Juror Two’s confidentiality despite
the letters.
F. Admission Of A Photograph Of Munoz Smiling
Did Not Result In A Miscarriage Of Justice
Munoz argues the trial court should have excluded a
photograph of him smiling during his arrest under Evidence Code
section 352, which grants courts the discretion to “exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice, of confusing the issues, or of misleading
the jury.” We review a trial court’s determination under
Evidence Code section 352 for abuse of discretion, and will
reverse only if “ ‘ “ ‘the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.’ ” ’ ” (People v. Jones (2017)
3 Cal.5th 583, 609 (Jones).) Under that standard, we reject
Munoz’s challenge.
1. Additional background
Munoz filed a motion in limine in the trial court to exclude
a photograph of himself. In the photograph, Munoz appears to be
smiling at the camera. His arms appear to be behind his back
and a CHP officer is standing directly behind him. Munoz argued
31
that the photograph was irrelevant, particularly because it was
taken before Munoz knew he had killed someone, and that it was
unduly inflammatory.
During the hearing on the motion, the prosecution argued
that the photograph was relevant to show that Munoz was
intoxicated, as indicated by his “bloodshot and watery” eyes, but
still conscious and aware enough to respond to the “social cue” of
his picture being taken, despite his intoxicated state. The
prosecution argued this was relevant to contest Munoz’s
anticipated defense that because of “alcoholic blackout” and sleep
deprivation, he was unable to form the requisite intent for
murder.
The trial court denied the motion, finding the photograph
“relevant to the extent of [Munoz’s] intoxication.” The trial court
stated that “[w]hen people are intoxicated, they sometimes act
inappropriately under the circumstances. And if this were a
smile, indeed, one can attribute the inappropriate behavior to his
degree of intoxication.”
The prosecution introduced the photograph at trial.
2. Analysis
We decline to address whether the trial court erred in
admitting the photograph, because any such error did not result
in a “ ‘ “ ‘manifest miscarriage of justice.’ ” ’ ” (Jones, supra,
3 Cal.5th at p. 609.) We deem any error in applying
Evidence Code section 352 harmless “unless a different result
would have been reasonably probable” had the trial court not
made the error. (People v. Marks (2003) 31 Cal. 4th 197, 222,
226-227.)
As we have discussed, evidentiary factors supporting
conviction for a Watson implied malice murder include
32
“ ‘(1) blood-alcohol level above the .08 percent legal limit;
(2) a predrinking intent to drive; (3) knowledge of the hazards of
driving while intoxicated; and (4) highly dangerous driving.’ ”
(Wolfe, supra, 20 Cal.App.5th at pp. 682-683.) Most of these
factors were overwhelmingly present here. Munoz admitted that
he was well aware of the hazards of driving while intoxicated,
given his earlier conviction for driving under the influence and
the subsequent required safety classes. Despite this knowledge,
he made the decision to drive after drinking enough to raise
his blood alcohol level to two-and-a-half times the legal limit.
(See Veh. Code, § 23152, subd. (b).) His driving was
unquestionably highly dangerous; rather than take extra care to
account for his reduced faculties, he drove at almost 100 miles
per hour down the freeway, zigzagging and forcing other
motorists to move out of his way, and did not apply his brakes
before colliding with Mahan’s truck. In light of this strong
evidence of conscious disregard for the lives of others, we do not
think it reasonably probable the photograph affected the jury’s
verdict.
33
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
JOHNSON, Acting P. J.
CURREY, J.*
* Associate Justice of the Court of Appeal,
Second Appellate District, Division Four, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34