People v. Moreno-Rodriguez CA3 ( 2024 )

Filed 9/20/24 P. v. Moreno-Rodriguez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C098862
v. (Super. Ct. No. 21FE012664)
ARMANDO MORENO-RODRIGUEZ,
Defendant and Appellant.
Armando Moreno-Rodriguez drove his car onto a bicycle trail while under the
influence of alcohol. His car hit and killed Michael Dodson. A jury convicted defendant
of second degree murder, gross vehicular manslaughter while intoxicated, failing to stop
at the scene of an accident resulting in death, and driving with a suspended license. The
jury also found true allegations that defendant had three prior convictions for driving with
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a blood alcohol concentration of .08 percent or more. The trial court sentenced defendant
to a determinate prison term of one year, consecutive to an indeterminate term of 15 years
to life.
Defendant now contends (1) the law of second degree murder based on implied
malice and gross vehicular manslaughter while intoxicated is unconstitutionally vague in
the context of a drunk driving case; (2) insufficient evidence supports the conviction for
failing to stop at the scene of an accident resulting in death; (3) the trial court erred in
instructing the jury on flight as evidence of consciousness of guilt; (4) the indeterminate
abstract of judgment must be corrected to indicate life with the possibility of parole;
and (5) the trial court should have instructed the jury that to convict defendant of implied
malice murder, it had to find that his conduct involved a high probability of death.
The People counter that remand is required because the sentence imposed on the
count three conviction for failing to stop at the scene of an accident is unauthorized.
We conclude (1) the law of second degree murder based on implied malice and
gross vehicular manslaughter while intoxicated is not unconstitutionally vague in the
context of a drunk driving case; (2) substantial evidence supports the jury’s finding that
defendant failed to stop at the scene of an accident resulting in death; (3) there was
sufficient evidence to warrant an instruction on flight as evidence of consciousness of
guilt; (4) the indeterminate abstract of judgment should indicate life with the possibility
of parole, but in addition, the count three sentence for failing to stop at the scene of an
accident must be vacated and the matter remanded for resentencing on that count, and on
remand, the trial court must impose a sentence on the count four conviction for driving
with a suspended license; and (5) the fifth contention asserting instructional error is
forfeited.
We will vacate the sentence on the count three conviction for failing to stop at the
scene of an accident and remand the matter to the trial court for resentencing on that
count. We will also direct the trial court on remand to impose a sentence on the count
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four conviction for driving with a suspended license. We will otherwise affirm the
judgment.
BACKGROUND
On a clear and sunny day in June 2021, members of a cycling club were riding
bicycles on the American River Parkway trail. Use of the trail was generally limited to
pedestrians and bicyclists. Sacramento County Park ordinances limited driving on trails
to authorized and permitted vehicles.
Cyclists saw an Audi sedan driving on the trail toward them and waved at the car
to slow down, but it did not. Some cyclists swerved off the trail to avoid the car.
Witnesses then heard two thud sounds and the sound of the Audi accelerating
away. Michael Dodson, a member of the cycling club, was found on the side of the trail,
unconscious. He suffered significant injuries and died 25 days later. A detective opined
from damage to the bicycle that the Audi hit the front of the bicycle.
The Audi stopped about 200 or 300 feet from Dodson, past a turn in the trail.
The car engine was still running and liquid leaked from the car. Defendant smelled of
alcohol, his eyes were bloodshot, and his speech was slurred. Field sobriety tests
indicated defendant was alcohol impaired. A blood draw determined a blood alcohol
concentration of .276 percent.
Investigation showed that a car had hit and driven through a gate to the trail.
Parts from the Audi’s bumper were found at the gate area.
Defendant driver’s license had been suspended in October 2017 and was never
reinstated. Defendant knew his license had been suspended. Nevertheless, he purchased
the Audi about a month before the June 29, 2021 collision. Defendant had been
convicted on three prior occasions for driving under the influence of alcohol.
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The jury convicted defendant of second degree murder (Pen. Code, § 187,
subd. (a) – count one),1 gross vehicular manslaughter while intoxicated (§ 191.5,
subd. (a) –count two), failing to stop at the scene of an accident resulting in death
(Veh. Code, § 20001, subd. (b)(2) – count three), and driving with a suspended license
(Veh. Code, § 14601.2, subd. (a) – count four). The jury found true allegations that
defendant had three prior convictions for driving a vehicle with .08 percent or more, by
weight, of alcohol in his blood. The trial court sentenced defendant to a determinate
prison term of one year, consecutive to an indeterminate term of 15 years to life.
DISCUSSION
I
Defendant contends the crimes of second degree murder based on implied malice
and gross vehicular manslaughter while intoxicated are indistinguishable in a drunk
driving case and the law is, therefore, unconstitutionally vague.
The due process guarantees of the United States and California Constitutions
require “ ‘a reasonable degree of certainty in legislation, especially in the criminal law.’ ”
(People v. Heitzman (1994) 9 Cal.4th 189, 199; accord People v. Superior Court
(Caswell) (1988) 46 Cal.3d 381, 389.) “To withstand a facial vagueness challenge under
the due process clause, a statute must . . . [¶] . . . be sufficiently definite to provide
adequate notice of the conduct proscribed. ‘[A] statute which either forbids or requires
the doing of an act in terms so vague that [individuals] of common intelligence must
necessarily guess at its meaning and differ as to its application violates the first essential
of due process of law. [Citations.]’ ” (Caswell, at pp. 389; accord Johnson v. United
States (2015) 576 U.S. 591, 595.) Due process also requires a statute to provide
sufficiently definite guidelines for those charged with its enforcement to prevent arbitrary
1 Undesignated statutory references are to the Penal Code.
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and discriminatory enforcement. (People v. Morgan (2007) 42 Cal.4th 593, 605;
Heitzman at p. 199; Caswell, at p. 390; Johnson, at p. 595.)
Defendant asserts that “drunk driving murder” and “drunk driving manslaughter”
require the same conduct and state of mind and are indistinguishable. But the California
Supreme Court has rejected the argument that second degree murder based on implied
malice and vehicular manslaughter with gross negligence are coterminous crimes.
(People v. Watson (1981) 30 Cal.3d 290, 296-297, 295-296 (Watson).)
Second degree murder is the unlawful killing of a human being or fetus with
malice aforethought. (§ 187, subd. (a); People v. Knoller (2007) 41 Cal.4th 139, 151
(Knoller).) Implied malice requires proof of a physical act and a mental state. (In re
Ferrell (2023) 14 Cal.5th 593, 600 (Ferrell).) These components of implied malice are
long settled. (Knoller, at p. 152; see Watson, supra, 30 Cal.3d at pp. 296-297, 300.)
In contrast, gross vehicular manslaughter while intoxicated is the unlawful killing
of a human being without malice aforethought, in the driving of a vehicle, in violation of
specified Vehicle Code sections prohibiting driving under the influence, and in which the
killing was the proximate result of the commission of an infraction or misdemeanor with
gross negligence or a lawful act that might produce death in an unlawful manner with
gross negligence. (§ 191.5, subd. (a).) The requisite mental state for the crime is gross
negligence. (Watson, supra, 30 Cal.3d at p. 296.)
The Supreme Court explained in Watson that the requisite mental states for
implied malice and gross negligence are not identical because implied malice
contemplates a subjective awareness of a higher degree of risk than does gross
negligence, and implied malice involves an element of wantonness absent in gross
negligence. (Watson, supra, 30 Cal.3d at pp. 295-296; see People v. Dellinger (1989)
49 Cal.3d 1212, 1221 [stating that wantonness connotes conscious or knowing acts])
A subjective standard applies to a finding of implied malice whereas an objective test
applies to a finding of gross negligence. (Watson, at pp. 296-297.) The Supreme Court
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held that second degree implied malice murder and gross negligence vehicular
manslaughter involve different kinds of culpability or criminal conduct. (Id. at p. 297.)
And it found unpersuasive the argument that the more specific provisions applicable to
vehicular homicides preempted the general murder statutes, an argument defendant
appears to make here. (Id. at pp. 295-298.)
Defendant nevertheless argues that because section 29.4 precludes a jury from
considering mental impairment, the subjective awareness aspect of an implied malice
murder conviction “is an empty vessel.” We disagree with defendant’s characterization
of section 29.4.
Section 29.4 prohibits the use of evidence of voluntary intoxication to establish
that a defendant acted without implied malice. (People v. Soto (2018) 4 Cal.5th 968,
975, 978.) It embodies a legislative judgment that voluntary intoxication can serve
no defensive purpose in an implied malice murder case. (People v. Timms (2007)
151 Cal.App.4th 1292, 1300.) “In short, voluntary intoxication is irrelevant to proof of
the mental state of implied malice or conscious disregard.” (Ibid.) But section 29.4 does
not preclude a jury from any consideration of a defendant’s mental state. To obtain a
conviction for second degree murder based on implied malice, the People must prove that
the defendant acted deliberately with a conscious disregard for life, knowing that his or
her conduct endangered the life of another. (See Ferrell, supra, 14 Cal.5th at p. 600;
Watson, supra, 30 Cal.3d at pp. 296-297; Timms, at pp. 1300-1301 [concluding that
former section 22 [now section 29.4] does not lessen the prosecution’s burden of proof].)
Defendant further argues that the jury instructions given did not convey the
subjective/objective distinction between implied malice murder and gross negligence
vehicular manslaughter, they required “conscious disregard” for both crimes, and the
closing arguments conflated the elements of the two crimes. The arguments lack merit.
The trial court told the jury the mental state for second degree murder was implied
malice and the mental state for gross vehicular manslaughter while intoxicated was gross
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negligence. The instruction on the murder count conveyed the physical and mental
components of implied malice and set forth the applicable subjective standard. With
regard to gross vehicular manslaughter while intoxicated, the trial court told the jury that
a conviction required proof that defendant committed the requisite act – driving while
under the influence of alcohol – with gross negligence. It instructed that gross negligence
involved acting in a reckless way that created a high risk of death or great bodily injury
under circumstances in which a reasonable person would have known that acting in that
way would create such a risk. The instruction conveyed the objective standard applicable
to a finding of gross negligence. Contrary to defendant’s assertion, the gross vehicular
manslaughter while intoxicated instruction did not mention conscious disregard.
Moreover, the trial court told the jury to follow the law as the trial court explained it and
to follow the trial court’s instructions if the jury believed the attorney’s comments on the
law conflicted with the court’s instructions. We presume the jury followed the trial
court’s instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.)
In supplemental briefing, defendant further argued that People v. Reyes (2023)
14 Cal.5th 981 (Reyes) changed the law of implied malice murder by adding an element
that the defendant’s act must involve a high degree of probability that it will result in
death. Defendant contends the new element does not distinguish murder from
manslaughter. We do not agree that Reyes changed the law by adding a new element.
Reyes reiterated the long-established standard for implied malice murder:
“Murder is committed with implied malice when ‘the killing is proximately caused by
“ ‘an act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life.’ ” ’ ” (Reyes, at p. 988.) With
regard to the actus reus element, the court in Reyes cited Knoller, supra, 41 Cal.4th 139and reiterated that “the defendant’s act must not merely be dangerous to life in some
vague or speculative sense; it must ‘ “involve[ ] a high degree of probability that it will
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result in death.” ’ ” (Reyes, at p. 989.) As Knoller explained, the standard that the act
must involve a high degree of probability that it will result in death derived from Justice
Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 470. (Knoller, at
p. 152.) Thus, contrary to defendant’s assertion, Reyes did not change the law of implied
malice murder; it merely restated it. Defendant’s argument lacks merit because his
premise is incorrect.
The law of second degree murder based on implied malice and gross vehicular
manslaughter while intoxicated is not unconstitutionally vague in the context of a drunk
driving case.
II
Defendant next claims there is insufficient evidence to support his conviction for
failing to stop at the scene of an accident resulting in death.
In determining whether sufficient evidence supports a conviction, “ ‘we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence --
evidence that is reasonable, credible and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] . . . “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.]’ ” (People v.
Nelson (2011) 51 Cal.4th 198, 210.) And “ ‘[w]e “must accept logical inferences that the
jury might have drawn from the circumstantial evidence.” ’ ” (People v. Manibusan
(2013) 58 Cal.4th 40, 87.) We do not reweigh evidence or reevaluate witness credibility.
(People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The driver of a vehicle involved in an accident resulting in the death of a person
must immediately stop the vehicle at the scene of the accident and furnish information
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specified in section 20003 and render assistance to any person injured. (Veh. Code,
§ 20001, subd. (a).) The requirement to immediately stop means to stop the vehicle as
promptly as possible under the circumstances. (People v. Odom (1937) 19 Cal.App.2d
641, 647.)
In this case, witnesses heard the Audi accelerate away after the collision. The car
stopped about 200 or 300 feet from the crash site. Witnesses opined that the Audi
stopped or became inoperable because of damage to the car. Although he did not object
at trial to such opinion testimony, defendant now argues it invited the jury to speculate
that the Audi broke down and that defendant would have otherwise driven away from the
scene. Defendant also complains that there was no expert testimony about why the Audi
stopped. But the failure to assert a timely objection forfeited his evidentiary challenges.
(People v. Tuilaepa (1992) 4 Cal.4th 569, 588.)
As for his sufficiency of the evidence challenge, we conclude a jury could
reasonably find from the evidence that defendant failed to promptly stop at the scene of
the collision. And we would reach the same conclusion even if we did not consider the
testimony defendant now challenges, because there was evidence that defendant did not
stop immediately but instead accelerated away after the crash. Further, there was no
evidence that defendant fulfilled his other mandatory duties, i.e., furnishing the statutorily
required information and rendering assistance to Dodson. Defendant has not established
that the count three conviction for failing to stop at the scene of the accident must be
reversed.
III
Defendant further asserts it was error to instruct the jury on flight as evidence of
consciousness of guilt because there was no evidence he failed to stop promptly after the
collision.
“ ‘In general, a flight instruction “is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
9
was motivated by a consciousness of guilt.” ’ [Citations.] Evidence that a defendant left
the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a
purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the
prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid
arrest, only that a jury could find the defendant fled and permissibly infer a consciousness
of guilt from the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 328, italics
omitted; accord People v. Abilez (2007) 41 Cal.4th 472, 522.)
As we have explained, there is substantial evidence that defendant immediately
left the scene of the collision. Defendant’s car hit Dodson and his bicycle. The impact
shattered the car’s windshield and left a large hole in the driver’s side of the windshield.
Yet defendant accelerated away. A jury could reasonably find from the evidence that
defendant fled the crash site and it could reasonably infer that the flight showed a
consciousness of guilt. “Alternative explanations for flight conduct go to the weight of
the evidence, which is a matter for the jury, not the court, to decide.” (People v. Rhodes
(1989) 209 Cal.App.3d 1471, 1477.) There was sufficient evidence to warrant an
instruction regarding flight as evidence of consciousness of guilt.
IV
In addition, defendant asserts the abstract of judgment for the indeterminate
sentence must be corrected to eliminate a reference to life without the possibility of
parole, because no such sentence was imposed. We agree the indeterminate abstract of
judgment should indicate life with the possibility of parole on counts one and two. But
for the reasons we will explain, remand for resentencing and sentencing is also required.
The People assert that the one-year sentence on the count three conviction for
failing to stop at the scene of an accident is unauthorized. According to the People, the
trial court erred in using the indeterminate term on the count one conviction for second
degree murder as the principal term for purposes of computing the determinate sentence
on count three, and because there was no other determinate term imposed, the trial court
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could not have sentenced defendant to one-third the middle term on count three. The
People are correct.
An overall sentence may include both determinate and indeterminate terms.
(People v. Felix (2000) 22 Cal.4th 651, 655.) When a determinate sentence is imposed
under section 1170 and the sentence is to run consecutively to, or concurrently with, an
indeterminate sentence imposed under section 1168, subdivision (b), the judgment must
specify the determinate term, computed without reference to the indeterminate sentence,
and order the determinate term be served consecutively to or concurrently with the
indeterminate term. (Cal. Rules of Court, rules 4.403, 4.451(a).) With regard to the
determinate term, “ ‘most felonies specify three possible terms of imprisonment (the
lower, middle, and upper terms); . . . [and] the trial court selects one of these terms.’ ”
(Felix, at p. 654.) “[I]f a defendant is convicted of more than one offense carrying a
determinate term, and the trial court imposes consecutive sentences, the term with the
longest sentence is the ‘principal term’; any term consecutive to the principal term is a
‘subordinate term.’ [Citation.] The court imposes the full term, either lower, middle,
or upper, for the principal term. However, in general (there are exceptions), the court
imposes only ‘one-third of the middle term’ for subordinate terms.” (Id. at p. 655;
see § 1170.1, subd. (a).)
Here, the trial court imposed a sentence of 15 years to life in prison on the count
one conviction for second degree murder and imposed but stayed the same sentence on
the count two conviction for gross vehicular manslaughter while intoxicated. It then
imposed a one-year prison sentence on the count three conviction for failing to stop at the
scene of an accident, consecutive to the indeterminate term, saying that the one-year term
was one-third the middle term. It did not impose a sentence on the count four conviction
for driving with a suspended license.
In sentencing defendant to one-third the middle term on count three, the trial
court treated the indeterminate term as a principal term. But sentencing for determinate
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and indeterminate term crimes must be performed separately. (Cal. Rules of Court,
rules 4.403, 4.451(a); People v. Neely (2009) 176 Cal.App.4th 787, 793, 797-799;
see People v. Lyons (1999) 72 Cal.App.4th 1224, 1228 [“there is no provision for
making a determinate term either principal or subordinate to an indeterminate term”];
People v. Reyes (1989) 212 Cal.App.3d 852, 856 [when a defendant is sentenced to both
determinate and indeterminate terms, neither is “principal” or “subordinate;” they
are considered and calculated independently of one another]; People v. Day (1981)
117 Cal.App.3d 932, 936-937 [same].) The court in Neely described it as sentencing in
separate boxes. (Neely, at pp. 798-799.) Because the trial court did not do so here, we
will vacate the sentence on the count three conviction for failing to stop at the scene of an
accident and remand for resentencing on that count. (Id. at p. 799.)
Although the parties did not raise the issue, we have identified another problem
with defendant’s sentence. The jury found defendant guilty on count four of driving with
a suspended license in violation of Vehicle Code section 14601.2, subdivision (a).
Subdivision (d) of Vehicle Code section 14601.2 sets forth the possible punishment for
such a violation. But the trial court did not impose any sentence on count four. A trial
court must impose a sentence on each count except where probation is granted, and
probation was not granted here. (§ 12; People v. Duff (2010) 50 Cal.4th 787, 795-796;
People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1468.) Failure to pronounce
sentence on a count results in an unauthorized sentence. (People v. Price (1986)
184 Cal.App.3d 1405, 1411, fn. 6.) Because the law appears clear on this issue, we will
direct the trial court to impose sentence on the count four conviction for driving with a
suspended license without requesting supplemental briefing. Any party aggrieved by this
approach may file a petition for rehearing. (Gov. Code, § 68081.)
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V
In supplemental briefing, defendant claims the trial court should have instructed
the jury that to convict defendant of implied malice murder, it had to find that his conduct
involved a high probability of resulting death. Defendant’s contention is forfeited.
Defendant’s claim is based on Reyes, supra, 14 Cal.5th 981. As we have
explained, Reyes reiterated that the defendant’s act must involve a high degree of
probability that it will result in death. (Reyes, at p. 989.) Here, the trial court instructed
the jury on the actus reus element of implied malice pursuant to CALCRIM No. 520 as
follows: the defendant had implied malice if he committed an act, the natural and
probable consequences of which were dangerous to human life. The California Supreme
Court has held that the phrase defendant argues should have been included in the jury
instruction – that he committed an act involving a high degree of probability that it will
result in death – articulates the same standard as the phrase the trial court used in its
instruction, namely, that defendant had implied malice if he committed an act, the natural
consequences of which are dangerous to life. (Knoller, supra, 41 Cal.4th at p. 152.)
Defendant did not object to the CALCRIM No. 520 instruction or ask the trial
court for an amplifying or clarifying instruction regarding the actus reus element.
Consequently, his appellate claim is forfeited. (People v. Guiuan (1998) 18 Cal.4th 558,
570 [a party may not complain on appeal that an instruction correct in law and responsive
to the evidence was incomplete unless the party has requested appropriate clarifying or
amplifying language]; People v. Tuggles (2009) 179 Cal.App.4th 339, 364.) But even if
the contention had not been forfeited, it would lack merit because the instruction given
was legally correct. (See Knoller, supra, 41 Cal.4th at p. 152.)
DISPOSITION
The sentence on the count three conviction for failing to stop at the scene of an
accident is vacated and the matter is remanded to the trial court for resentencing on that
count. On remand, the trial court shall also sentence defendant on the count four
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conviction for driving with a suspended license. The judgment is otherwise affirmed.
Following resentencing and sentencing, the trial court shall prepare amended and/or
corrected abstracts of judgment as appropriate, reflecting the resentencing on count three,
the sentence on count four, and life with the possibility of parole on counts one and two.
The trial court shall forward a certified copy of the amended and/or corrected abstracts
of judgment to the Department of Corrections and Rehabilitation.
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
KRAUSE, J.
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