People v. Ritter CA4/1

Filed 2/10/22 P. v. Ritter CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078368
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1800017)
BRANDON CHRISTOPHER RITTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Charles W. Campbell, Jr., Judge. (Retired Judge of the Ventura Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Affirmed.
Victoria H. Stafford, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland,
Assistant Attorneys General, Arlene A. Sevidal and Susan Elizabeth Miller,
Deputy Attorneys General, for Plaintiff and Respondent.
Brandon Christopher Ritter appeals a judgment convicting him of
second degree murder and driving under the influence of a drug after he
crashed his truck into a line of stopped cars, killing a driver of one of the cars
and breaking the back of another. Ritter claims the trial court prejudicially
erred by refusing to instruct the jury on unconsciousness and involuntary
manslaughter and by precluding his counsel from arguing he was guilty of
manslaughter rather than murder. He also claims the prosecutor committed
misconduct by trivializing the reasonable doubt standard of proof during
closing argument. We disagree with Ritter and affirm the judgment.
I.
BACKGROUND
A.
Automobile Collision
Ritter drove his truck at 70 to 80 miles per hour on a road where the
speed limit was 45 miles per hour and weaved in and out of traffic, causing
other motorists to have to swerve out of the way to avoid collision. Ritter
ultimately crashed his truck at full speed into a line of cars stopped at a
traffic light. The driver of the car that Ritter’s truck struck was killed, and
the driver of the next car in line broke his back. Ritter himself broke a femur
and facial bones, suffered extreme pain, and repeatedly told first responders
he wanted to die and asked to be shot.
B.
Trial Court Proceedings
1.
Charges
The People charged Ritter with one count of murder (Pen. Code, § 187,
subd. (a)) and one count of driving under the influence of a drug and causing
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bodily injury to another (Veh. Code, § 23153, subd. (f)). As an enhancement
to the driving under the influence charge, the People alleged Ritter
personally inflicted great bodily injury on the victim who broke his back.
(Pen. Code, § 12022.7, subd. (a).)
2.
People’s Case
Several eyewitnesses testified about Ritter’s reckless driving and the
resultant collision, as described in part I.A., ante.
Ritter’s roommate testified that on the day of the accident, Ritter
passed him, waved, and said, “I’ll see you on the other side.” In prior
conversations, Ritter had told the roommate he wanted to visit a dead friend
and used “the other side” to refer to dying.
A deputy sheriff testified that about nine months before the fatal
collision, he had been dispatched to Ritter’s residence in response to a call
from his mother about erratic behavior. The deputy found Ritter locked in a
room from which he said, “Unless you’re here to shoot me in the head, go
away.” Another deputy sheriff testified that about eight months before the
collision, he and his partner found Ritter sitting on the wall of a freeway
overpass, and when the partner pulled Ritter off the wall, Ritter said he
wanted to die.
A forensic toxicologist testified that blood drawn from Ritter about 30
minutes after the collision contained methamphetamine, a central nervous
system stimulant, at a level that indicated he was an abuser of the drug and
was under its influence at the time of the crash. The toxicologist explained
an abuser who is under the influence of methamphetamine has poor impulse
control and may speed and drive erratically, and as the influence wears off
the abuser may fall asleep inappropriately.
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A vehicle inspector found no defects in Ritter’s truck that would have
caused the crash. A collision scene investigator found no skid marks that
would have indicated Ritter had attempted to slow or stop his truck before
the collision. Deep gouge marks in the roadway indicated significant speed
and force were involved in the crash.
3.
Ritter’s Case
Ritter testified that on the day of the fatal collision he was “com[ing]
down” from the high from the methamphetamine he had used the previous
few days. While he was driving his truck to a restaurant at approximately 60
miles per hour, he changed lanes several times to pass slower vehicles. He
proceeded through an intersection and then “dozed off for a couple of seconds”
until sound from his truck’s exhaust pipe reflected off another car and
awakened him. Ritter realized he was headed for some cars ahead of him,
looked at his right sideview mirror, changed lanes, and crashed into the line
of vehicles in that lane. On cross-examination, Ritter admitted he was “cool,
calm, and collected” and had a detailed memory of the events preceding the
crash. He also admitted he knew reckless driving could cause fatal collisions
and agreed the driving described by the eyewitnesses who testified at trial
was reckless, but he denied driving that way.
A forensic consultant who reviewed the witness statements, Ritter’s
medical records, the toxicology report, and scientific literature testified Ritter
did not have enough methamphetamine in his system to be under the
influence at the time of the fatal collision.
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4.
Jury Instruction Requests
Based on his testimony he fell asleep right before the crash, Ritter
requested the trial court instruct the jury on unconsciousness (CALCRIM No.
3425) and on involuntary manslaughter as a result of voluntary intoxication
causing unconsciousness (CALCRIM No. 626). The court refused to give
either instruction.
5.
Closing Arguments
The prosecutor urged the jury to find Ritter guilty of implied malice
murder for “driving like a maniac” and killing another motorist. The
prosecutor argued Ritter was suicidal and high on methamphetamine, knew
driving recklessly could cause a fatal collision, and deliberately weaved
through traffic at high speed and crashed into a line of cars stopped at a
traffic light.
Ritter’s counsel wanted to argue the case was one of manslaughter, not
murder, but the prosecutor objected, and the trial court would not allow
counsel to argue manslaughter. Counsel instead argued the prosecutor had
not met the burden of proof on implied malice and in describing the
reasonable doubt standard told the jury: “[I]t has to be a decision that you
can live with, not just today or tomorrow, . . . but it’s going to be a decision
that stays with you for the rest of your life. You don’t make it in a vacuum. I
think it’s the type of decision you really got to be sure about, like when you
decided who[m] to marry or whatever other important decision you make.
It’s got to sit right with you.”
In rebuttal, the prosecutor disagreed with Ritter’s counsel’s description
of the reasonable doubt standard. She argued proof beyond a reasonable
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doubt “is what the jury instruction says, an abiding conviction the charges
are true. You decide what that means to you. It is not an impossible
standard, not compared to marriage. It is an abiding conviction that the
charges are true. You decide what that is.”
6.
Verdicts and Sentence
The jury found Ritter guilty of murder and driving under the influence
of a drug causing bodily injury, and found the great bodily injury
enhancement allegation true. The trial court sentenced him to prison for 21
years to life.
II.
DISCUSSION
A.
Instructional Errors
Ritter claims the trial court prejudicially erred by refusing to instruct
the jury on unconsciousness (CALCRIM No. 3425) and on voluntary
intoxication causing unconsciousness (CALCRIM No. 626). He contends
unconsciousness, if not caused by voluntary intoxication, would have been a
complete defense to the murder charge; and if caused by voluntary
intoxication, unconsciousness would have reduced the murder to involuntary
manslaughter. The court was required to give the requested instructions,
argues Ritter, because there was substantial evidence from which the jury
could have found he fell asleep before the crash and either was or was not
voluntarily intoxicated. He contends the erroneous refusal to give the
requested instructions was not harmless beyond a reasonable doubt and
therefore requires reversal. On de novo review (People v. Oropeza (2007) 151
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Cal.App.4th 73, 78), we find no error for the reasons discussed below, and
therefore need not address Ritter’s harmless error contention.
1.
Unconsciousness
“Persons who committed the act charged without being conscious
thereof” are not “capable of committing crimes.” (Pen. Code, § 26, par. Four.)
Unconsciousness not caused by voluntary intoxication operates as a complete
defense to a criminal charge. (People v. Nieves (2021) 11 Cal.5th 404, 463.)
The trial court must instruct the jury on unconsciousness following
introduction of substantial evidence that the defendant was unaware of the
charged act when it was performed. (People v. Halvorsen (2007) 42 Cal.4th
379, 417 (Halvorsen); People v. Rogers (2006) 39 Cal.4th 826, 887-888.) In
deciding whether substantial evidence supports the defense, the court does
not assess the credibility of the evidence. (People v. Salas (2006) 37 Cal.4th
967, 982; People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) To warrant an
instruction on unconsciousness, the evidence must be sufficient to raise a
reasonable doubt in the minds of the jurors that the defendant was aware of
his acts when he committed them. (Salas, at p. 982; People v. Heffington
(1973) 32 Cal.App.3d 1, 9 (Heffington); CALCRIM No. 3425.) The evidence at
Ritter’s trial was insufficient to warrant an unconsciousness instruction.
The pertinent conduct of which Ritter must have been aware at the
time of its commission for him to be criminally liable was the reckless driving
that resulted in the fatal collision. (See People v. Moore (2010) 187
Cal.App.4th 937, 939 [reckless driving that caused fatal collision supported
implied malice murder conviction].) Several eyewitnesses testified Ritter
weaved his way through traffic at high speed and nearly collided with several
other vehicles before he crashed his truck into a line of cars stopped at a
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traffic light. Ritter acknowledged that type of driving was dangerous and
could cause a fatal collision. He testified he was coming down from a
methamphetamine high when he got into his truck; he recalled in detail the
route he traveled and the driving maneuvers leading up to the crash; he
admitted he was in command of his faculties except for the couple of seconds
he dozed off right before the crash; and when he woke up he attempted
evasive maneuvers. Ritter’s own testimony about the events preceding the
collision and “[t]he complicated and purposive nature of his conduct in
driving” make clear he was aware of his actions as they happened.
(Halvorsen, supra, 42 Cal.4th at p. 418.) Ritter’s citation to the testimony of
the collision scene investigator that it was “a possibility” that Ritter fell
asleep and for that reason did not apply his brakes before the crash does not
alter this conclusion. Such speculation is insufficient to require an
instruction on unconsciousness. (People v. Beck and Cruz (2019) 8 Cal.5th
548, 648.) Without sufficient evidence from which the jury could have had a
reasonable doubt that Ritter was aware of his reckless driving as he was
driving, the trial court had no duty to instruct the jury on unconsciousness.
(See People v. Froom (1980) 108 Cal.App.3d 820, 830 [error to instruct on
unconsciousness when no evidence from which jury could infer defendant was
unconscious during commission of criminal act]; Heffington, supra, 32
Cal.App.3d at p. 10 [unconsciousness instruction properly refused in assault
case when evidence did not show unawareness coexistent with fight].)
2.
Involuntary Manslaughter
Unconsciousness caused by voluntary intoxication is not a complete
defense to a criminal charge, but it may reduce some homicides to
involuntary manslaughter. (People v. Ochoa (1998) 19 Cal.4th 353, 423;
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CALCRIM No. 626.) As discussed above, however, there was no substantial
evidence Ritter was unconscious of the reckless driving that caused the fatal
collision. Hence, whether he was voluntarily intoxicated or not, there was no
factual basis for a jury instruction on the effect of voluntary intoxication
causing unconsciousness on homicide crimes.
The request for the instruction was properly refused for other reasons
as well. The statute defining involuntary manslaughter states it “shall not
apply to acts committed in the driving of a vehicle.” (Pen. Code, § 192, subd.
(b).) Ritter killed by recklessly driving his truck into the victim’s car.
Another statute states that “[e]vidence of voluntary intoxication is admissible
solely on the issue of whether or not the defendant actually formed a required
specific intent, or, when charged with murder, whether the defendant
premeditated, deliberated, or harbored express malice aforethought.” (Id.,
§ 29.4, subd. (b), italics added.) A “defendant who unlawfully kills without
express malice due to voluntary intoxication can still act with implied malice,
which voluntary intoxication cannot negate” under the quoted statute.
(People v. Turk (2008) 164 Cal.App.4th 1361, 1376 [considering predecessor
statute]; accord, People v. Morales (2021) 69 Cal.App.5th 978, 997
[considering current statute]; see People v. Martin (2000) 78 Cal.App.4th
1107, 1114 (Martin) [statute was enacted “to preclude evidence of voluntary
intoxication to negate implied malice aforethought”].) “By prohibiting
evidence of voluntary intoxication to negate implied malice, the Legislature
apparently agreed . . . that a defendant who acts with conscious disregard for
life should be punished for murder regardless of whether voluntary
intoxication impaired his or her judgment.” (People v. Soto (2018) 4 Cal.5th
968, 977-978 (Soto).) Ritter was prosecuted for implied malice murder. (See
People v. Watson (1981) 30 Cal.3d 290, 293, 300-301 [intoxicated driver who
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kills another in collision may be prosecuted for implied malice murder].)
Since his voluntary intoxication, even to the point of unconsciousness, could
not have prevented his conviction of that crime, he was not entitled to the
requested jury instruction on involuntary manslaughter (CALCRIM No. 626).
(People v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40; People v. Carlson (2011)
200 Cal.App.4th 695, 705-707 (Carlson).)
In his reply brief, Ritter argues that insofar as Penal Code section 29.4
precludes conviction of involuntary manslaughter based on voluntary
intoxication causing unconsciousness, the statute violates his due process
right to present relevant exculpatory evidence on mental state. (U.S. Const.,
14th Amend.; Cal. Const., art. I, § 7, subd. (a).) Other appellate courts have
considered the same argument and the same authority Ritter cites and have
uniformly rejected the argument. (People v. Berg (2018) 23 Cal.App.5th 959,
969-970; Carlson, supra, 200 Cal.App.4th at pp. 707-708; People v. Timms
(2007) 151 Cal.App.4th 1292, 1298-1301; Martin, supra, 78 Cal.App.4th at
pp. 1115-1117.) “We agree with these cases. The Legislature has decided, for
policy reasons, that evidence of voluntary intoxication is irrelevant to proof of
certain mental states. The Legislature may validly make that policy
decision.” (Soto, supra, 4 Cal.5th at p. 981.)
B.
Restriction on Closing Argument
Ritter claims the trial court deprived him of effective assistance of
counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) and of liberty
without due process of law (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a)) by preventing counsel from arguing Ritter was not guilty of murder
but might have been guilty of manslaughter. As part of this claim, Ritter
again contends the court erred by refusing to instruct on involuntary
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manslaughter based on voluntary intoxication causing unconsciousness.
Ritter also contends counsel was entitled to argue Ritter did not act with
implied malice and so was guilty of manslaughter, not murder, and to use
manslaughter to illustrate and clarify for the jury the different mental states
required for different types of vehicular homicide. By preventing counsel
from doing so, Ritter complains, the court interfered with his right to counsel
and lessened the prosecutor’s burden of proof. He argues the limitation on
counsel’s argument was not harmless beyond a reasonable doubt and so
requires reversal of the murder conviction. As we shall explain, the court did
not err and we thus need not address Ritter’s harmless error argument.
The trial court has discretion to limit the scope of closing argument to
relevant and material matters. (Pen. Code, § 1044; People v. Edwards (2013)
57 Cal.4th 658, 743.) For reasons already discussed, Ritter’s counsel was not
entitled to argue Ritter was guilty of involuntary manslaughter. (See pt.
II.A.2., ante.) Nor could counsel argue Ritter was guilty of voluntary
manslaughter, because there was no evidence he killed the victim “upon a
sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).) The only
potentially arguable type of manslaughter on the facts presented at trial was
vehicular manslaughter. (Id., §§ 191.5, subds. (a), (b), 192, subd. (c); see
Watson, supra, 30 Cal.3d at p. 299 [“a defendant may be charged with second
degree murder upon facts which also would support a charge of vehicular
manslaughter”].) That offense, however, was not charged in the operative
accusatory pleading either explicitly or implicitly, because vehicular
manslaughter is a lesser related offense of murder, not a lesser included
offense. (People v. Hicks (2017) 4 Cal.5th 203, 209, 211; People v. Wolfe
(2018) 20 Cal.App.5th 673, 688.) If the defendant is charged with murder but
not vehicular manslaughter, the trial court may not instruct the jury on
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vehicular manslaughter unless the prosecutor agrees, because granting the
defendant’s unilateral request for instructions on the uncharged lesser
related offense “would interfere with prosecutorial charging discretion,
essentially allowing the defendant, not the prosecutor, to choose which
charges are presented to the jury for decision.” (Hicks, at p. 211; see People v.
Alvarez (2019) 32 Cal.App.5th 781, 790; Wolfe, at p. 688.) Allowing the
defendant to argue to the jury that he is guilty of an uncharged lesser related
offense but not of the charged greater offense would likewise interfere with
the prosecutor’s charging discretion and is not permitted. (People v. Brown
(2016) 6 Cal.App.5th 1074, 1087-1088; People v. Valentine (2006) 143
Cal.App.4th 1383, 1387-1388.) Because the prosecutor charged Ritter with
murder but not vehicular manslaughter and objected to argument by Ritter’s
counsel that he might be guilty of manslaughter but not of murder, Ritter
was “neither entitled to an instruction on a lesser related offense nor to urge
his conviction for that offense.” (Valentine, at p. 1388, italics added.)
Ritter’s counsel of course was free to and did argue that the prosecutor
had not proved beyond a reasonable doubt that Ritter acted with implied
malice, the mental state required to find him guilty of murder. Counsel
argued Ritter had no intent to kill, he did not intentionally drive his truck
into the car whose driver was killed, and he did not deliberately act with
conscious disregard for human life. Rather, counsel argued, the evidence
showed Ritter drifted off to sleep while he was driving, he quickly awakened,
and there was a collision. That was a “horrible tragedy” and an “accident,”
said counsel, but it was not an implied malice murder. Counsel ended by
reminding the jurors of the reasonable doubt standard of proof and urging
them to find Ritter not guilty. Thus, counsel was able to argue effectively
that Ritter was at most negligent and did not kill with implied malice. The
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trial court’s ruling preventing counsel from arguing Ritter might have been
guilty of manslaughter but not of murder “fell within its discretion to control
the scope of closing argument and did not preclude defendant from making
his central point.” (People v. Marshall (1996) 13 Cal.4th 799, 854.)
C.
Prosecutorial Misconduct
As his final claim of error, Ritter accuses the prosecutor of misconduct
for trivializing the reasonable doubt standard of proof during closing
argument. Ritter contends that by arguing the decision to convict him was
less weighty than a decision on whom to marry, the prosecutor committed a
structural error that is reversible per se. Acknowledging the claim of error
might have been forfeited because trial counsel failed to object to the
prosecutor’s remark, Ritter argues counsel was ineffective for failing to do so
and urges us to reach the merits. We reject this claim of error.
Ritter forfeited the claim of prosecutorial misconduct. Generally, a
defendant may not complain on appeal of prosecutorial misconduct unless the
defendant made a timely assignment of misconduct on the same ground and
asked the trial court to admonish the jury to disregard the misconduct.
(People v. Silveria and Travis (2020) 10 Cal.5th 195, 306 (Silveria).) When
the prosecutor told the jury the reasonable doubt standard is “not compared
to marriage,” Ritter neither objected nor requested an admonition. Nothing
in the record indicates an objection would have been futile, and the court
easily could have cured any misstatement of the law by the prosecutor by
referring the jury to the instruction on reasonable doubt. Ritter therefore
may not complain of the prosecutor’s remark on appeal. (People v. Centeno
(2014) 60 Cal.4th 659, 674; People v. Williams (2017) 7 Cal.App.5th 644, 686.)
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Trial counsel was not ineffective for failing to object to the prosecutor’s
remark, because no objection was warranted. A defendant challenging the
prosecutor’s remarks to the jury must show that in the context of the whole
argument and the instructions it was reasonably likely the jury understood or
applied the remarks in an improper or erroneous way. (Silveria, supra, 10
Cal.5th at p. 306.) By arguing in rebuttal that the reasonable doubt standard
was “not an impossible standard, not compared to marriage,” the prosecutor
was not suggesting to the jury that a level of certainty lower than that
needed to select a spouse would suffice to find Ritter guilty. She was merely
disagreeing with the argument of Ritter’s counsel that the reasonable doubt
standard applied to “the type of decision you really got to be sure about, like
when you decided who[m] to marry.” The disagreement was apt. “[S]ince the
decision to marry is often based on a standard far less than reasonable doubt,
as reflected in statistics indicating 33 to 60 percent of all marriages end in
divorce,” this court “strongly disapprove[d] of arguments suggesting the
reasonable doubt standard is used in daily life to decide such questions as
whether to . . . marry.” (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
Moreover, in disagreeing with Ritter’s counsel’s analogy to the marriage
decision, the prosecutor directed the jurors to the instruction they had been
given on the reasonable doubt standard and told them it required them to
have “an abiding conviction that the charges are true.” That was a correct
statement of the law. (Victor v. Nebraska (1994) 511 U.S. 1, 14-15; People v.
Potts (2019) 6 Cal.5th 1012, 1033; see CALCRIM No. 220.) In thus taking
exception to Ritter’s counsel’s marriage analogy, the prosecutor did nothing
likely to mislead the jury on the applicable burden of proof. (People v. Bell
(2019) 7 Cal.5th 70, 111-112; Nguyen, at pp. 36-37.) “There was no
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misconduct and therefore no deficiency on counsel’s part in failing to object.”
(People v. Romero and Self (2015) 62 Cal.4th 1, 27.)
III.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
GUERRERO, J.
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