People v. Lopez

Filed 1/9/19; Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B282867
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA440645)
v.
LAURO LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed.
Waldemar D. Halka, 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, Yun K. Lee and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for publication with the exception of parts
I, II, and IV of the Discussion Section.
INTRODUCTION
While driving under the influence of alcohol, appellant
Lauro Lopez made a left turn in front of an oncoming motorcycle,
hitting and killing the rider. A jury convicted appellant of second
degree murder and felony hit and run driving resulting in death
or serious injury.
Appellant challenges his conviction in several ways. First,
he argues that the trial court erred by admitting evidence of the
advisement he received after a prior conviction for driving under
the influence. Second, appellant raises several claims of error
related to the jury instructions. Third, he contends his conviction
on both counts must be overturned due to his counsel’s concession
at trial that appellant committed the hit and run, coupled with
the absence of affirmative evidence that he knowingly waived his
constitutional trial rights. Finally, he asserts cumulative error
and sentencing error.
In our previous opinion, we reversed the conviction on the
hit and run charge based on appellant’s argument regarding his
counsel’s concession. We otherwise affirmed. We then granted
respondent’s petition for rehearing and received additional
briefing on the issue of the concession. Upon reexamination of
this issue, we conclude defense counsel’s statements during
argument were not tantamount to a guilty plea. We therefore
affirm the judgment in its entirety.
PROCEDURAL HISTORY
The Los Angeles County District Attorney charged
appellant in an information with one count of second degree
murder (Pen. Code, § 187, subd. (a); count one)1 and one count of
All further statutory references herein are to the Penal
1
Code unless otherwise indicated.
2
felony hit and run driving resulting in death or serious injury to
another person (Veh. Code, § 20001, subd. (b)(2); count two).
Appellant pled not guilty to both counts and the matter
proceeded to jury trial.
The jury found appellant guilty on both counts. The court
sentenced appellant to 15 years to life on the murder charge and
three years on the hit and run charge, to run consecutively.
Appellant timely appealed. As we have indicated, after we
issued our initial opinion, we granted respondent’s petition for
rehearing on the issue of defense counsel’s concession during
argument.
FACTUAL BACKGROUND
The following evidence was adduced at trial.
I. Prosecution Evidence
A. 2013 drunk driving conviction
Appellant was previously arrested for driving under the
influence on January 7, 2013. He pled no contest to driving
under the influence with a blood alcohol content of .08 percent or
higher in violation of Vehicle Code section 23152, subdivision (b),
and admitted as part of his plea that his blood alcohol level was
actually .20 percent or higher. Before entering his plea,
appellant signed a written advisement, which was also read to
him by a Spanish interpreter. It included the following Watson2
advisement: “I understand that being under the influence of
alcohol or drugs or both impairs my ability to safely operate a
motor vehicle. Therefore, it is extremely dangerous to human life
to drive while under the influence of alcohol or drugs or both. If I
continue to drive while under the influence of alcohol or drugs or
both, and as a result of my driving someone is killed, I can be
People v. Watson (1981) 30 Cal. 3d 290 (Watson).
2
3
charged with murder.” In addition, during the plea hearing, the
judge repeated the Watson advisement.
The terms of appellant’s plea required him to complete a
nine-month alcohol education program and a Mothers Against
Drunk Driving (MADD) victim impact program, and barred him
from driving without a valid driver’s license or with any
measurable amount of alcohol in his system. Appellant was
placed on probation for three years.
Pursuant to the terms of his plea, appellant completed a
nine-month alcohol program starting in February 2013. The
program, given in Spanish, included 23 group sessions, six
alcoholic education sessions, 10 interviews, and 19 Alcoholics
Anonymous meetings. Upon completion, appellant filled out an
exit form stating that he would not drink and drive.
In November 2013, appellant also attended a victim impact
panel, an educational program for driving under the influence
(DUI) offenders. He registered for and completed the course in
English. As part of the program, the administrator testified that
she discussed the Watson advisement with the participants and
projected the text on a big screen. She would customarily tell the
story of another class participant who attended the class twice
and later caused an accident that killed two people.
B. 2015 accident
On October 13, 2015 at approximately 7:15 p.m., appellant
approached the intersection of Soto Street and 57th Street in
Huntington Park. He was driving his white pickup truck and his
29-year-old son was in the passenger seat. Appellant made a left
turn onto 57th Street in front of an oncoming motorcycle. He
struck the motorcycle, knocking its rider to the ground.
Appellant then drove away from the scene.
4
A bystander called 911, reporting that “a guy came, took a
left. And nailed a woman or man on a motorcycle.” He described
the vehicle as a white truck and told the operator where the truck
was heading. The 911 call was played for the jury at trial.
Detective Garey Staal of the Huntington Park Police
Department (HPPD) testified that he and his partner saw the
motorcycle driving on Soto Street before the accident. The
motorcycle was travelling a “little faster than the normal traffic
but . . . nothing that was concerning as far as speed.” They came
upon the scene of the accident and saw the same motorcycle on
the ground. Detective Staal ran toward the victim on the ground
and began performing CPR, assisted by others at the scene.
Paramedics arrived less than five minutes later. The victim was
transported to the hospital and died shortly thereafter from his
injuries.
Staal and his partner gathered a description of the suspect
vehicle and its direction of travel from witnesses at the scene;
they broadcast that information over their police radio. The
detectives also noticed a license plate lying in the street, which
appeared to be the front license plate from the suspect vehicle.
Staal’s partner wrote down the license plate number and gave it
to police dispatch; dispatch advised him that the vehicle with
that plate number was registered to appellant.
A short time later, a police officer who had heard the
collision and then heard about the suspect over the police radio
spotted appellant’s truck parked in a nearby business parking lot.
As the officer walked over to the truck, he noticed appellant and
his son standing in a yard next to the vehicle. The officer
approached and asked in Spanish if either of them was driving
the pickup truck. The officer testified at trial that in response,
5
appellant pointed to his son, who shook his head no. The officer
then called for assistance.
HPPD officer Martin Magallanes arrived a few moments
later. He noted that the front license plate on appellant’s truck
was missing and the rear plate matched the number from the
plate at the scene. He spoke to appellant in Spanish and testified
that he could smell alcohol on appellant’s breath. Appellant
acknowledged to Magallanes that he had consumed three 24-
ounce beers between 5:00 and 6:00 p.m. He stated he did not feel
the effects of the alcohol, but Magallanes noticed appellant
swaying. Appellant also admitted he had been driving. He told
Magallanes that his truck did not have any mechanical problems
and he knew he had collided with a motorcycle. He did not ask
about the condition of the rider.
Magallanes administered a field sobriety test to appellant,
which indicated appellant was impaired. Appellant was also
given two breath tests, one at 8:10 and one at 8:12 p.m.; both
showed his blood alcohol content was 0.14 percent. That result
was confirmed by a blood draw taken at 8:30 p.m.3 Appellant
was arrested.
Magallanes interviewed appellant in jail that evening
around 10:00 p.m. Appellant agreed he had “too many beers” and
knew driving after drinking was a crime. He said he had one
beer at work, then went to the liquor store to get beer, drove
home, and drank “two big Modelos” at home. He told Magallanes
3A prosecution expert opined that any driver would be
impaired at the level of .08 percent or above. Given a
hypothetical scenario matching the facts of the case, he also
opined that the driver’s blood alcohol content at the time of the
accident would be between 0.14 and 0.16 percent.
6
that he was not planning to leave his house that night, but he
decided to drive his son to a friend’s house to see about a job. At
the time of the accident, he saw the motorcycle approaching but
thought he would be able to make the left turn safely before the
collision. He did not see the motorcyclist after the crash.
Appellant then left the scene because he was scared he would get
arrested because he had been drinking. His son told him to
remain at the scene. Appellant also stated he was not planning
to report the collision that night because he was intoxicated.
HPPD detective Osvaldo Cervantes interviewed appellant
on October 14, 2015. Excerpts from the video of that interview
were played for the jury. Appellant reiterated that he drank
three 24-ounce Modelo beers, finishing about an hour before the
accident. When asked if he thought he was drunk, appellant
responded, “Well, on the one hand, yes, but on the other hand I
think - yes, I was a little. I’m not going to say no. But . . . my kid
was going . . . and I thought it easier that I take the truck rather
than him.” The detectives also asked why appellant drove if he
knew he was drunk. He responded, “that was my mistake.” He
said the admonition he received with his prior conviction was
that “I wasn’t to drive again with alcohol” and knew he couldn’t
drive for three years. He also knew he was still on probation
from his prior conviction.
Appellant told the detectives that he was “going to make a
left turn” and claimed he saw the other driver “coming at a high
velocity on his motorcycle. But, there were no cars. He came
hard.” Appellant thought he was going to be able to turn in front
of the motorcycle, but they collided. His son said “Wait Dad!”
before the turn, but appellant went ahead because he thought he
could beat the motorcycle. After he felt the crash, appellant
7
reversed his truck to move away from the accident and then left
the scene because he was scared. He claimed he did not see the
condition of the motorcyclist and did not see him on the ground.
His son wanted to get out and check on the victim, but appellant
did not stop.
Appellant admitted to the detectives that he thought the
victim was hurt and he “came out of it badly.” Before they
advised appellant that the victim had died, the detectives asked
appellant if he wanted to know how serious the victim’s injuries
were. Appellant responded, “If you want to tell me.” He later
stated that he was sorry but that it was also the victim’s fault
because he (the victim) was driving so fast.
II. Defense evidence
The defense did not call any witnesses and appellant did
not testify.
DISCUSSION
I. Admission of Watson Advisements
At trial, the prosecution proffered evidence of the Watson
advisements appellant received prior to the 2015 collision,
including the written and oral plea advisements from his 2013
DUI plea and the subsequent coursework appellant completed as
part of that plea. Prior to trial, the parties and the court
acknowledged the relevance and importance of this evidence to
establish that appellant knew of the dangers of drinking and
driving prior to the collision, and therefore acted with the implied
malice required for murder.4 Appellant now contends this
Murder is “the unlawful killing of a human being . . . with
4
malice aforethought.” (§ 187, subd. (a).) Malice may be express
or implied. (§ 188.) The jury here was instructed with CALCRIM
No. 520, which provides that the defendant acted with implied
8
evidence was admitted in error for two reasons. First, he argues
that by admitting a statement from the prior court that it was
“required” to give the Watson advisement as part of the plea, the
trial court here “created a conclusive presumption” that “as a
matter of law, driving under the influence ‘is extremely
dangerous to human life,” thereby directing a verdict on the
physical component of implied malice. Second, he contends the
Watson advisements admitted at trial were inadmissible hearsay.
Respondent counters that both claims are forfeited as appellant
failed to raise them below. We agree that these arguments are
forfeited.
Generally, failure to object to the admission of evidence at
trial forfeits an appellate claim that such evidence was
improperly admitted. (See Evid. Code, § 353, subd. (a); People v.
Partida (2005) 37 Cal. 4th 428, 435 [defendant on appeal “may not
argue that the court should have excluded the evidence for a
reason different from his trial objection”]; People v. Stevens (2015)
62 Cal. 4th 325, 333 [forfeiture of objection to hearsay evidence].)
The purpose of requiring a specific objection is to “alert the trial
court to the nature of the anticipated evidence and the basis on
which exclusion is sought, and to afford the People an
opportunity to establish its admissibility.” (People v. Williams
(1988) 44 Cal. 3d 883, 906.)
Here, appellant failed to object below to the admission of
the Watson advisements on either ground he now asserts. He did
malice if: “(1) He intentionally committed an act; (2) The natural
and probable consequences of the act were dangerous to human
life; (3) At the time he acted, he knew his act was dangerous to
human life; and (4) He deliberately acted with conscious
disregard for human life.” (See also Watson, supra, 30 Cal.3d at
p. 295.)
9
object prior to trial to the prosecutor’s request to admit the
underlying facts of the prior DUI. He also objected during trial to
the admission of the plea waiver form, on the basis that it was
unclear whether appellant had initialed the Watson advisement
on the form.5 He raised no other objections to admission of any of
the Watson advisement evidence.
Moreover, appellant did not object as both the prosecutor
and the court repeatedly stressed the significance of the Watson
advisements to the issue of appellant’s intent. For example, at a
pretrial evidentiary hearing, the court denied the prosecutor’s
request to admit the underlying facts of the prior DUI, but
admitted evidence of the plea, advisements, and subsequent
education. In doing so, the court noted: “This is a Watson
murder . . . because of the specific education and knowledge that
[appellant] obtained through the Watson advisement, through the
attendance at the AA meetings and the M.A.D.D. presentation,
and all of that. And in the absence of that . . . without the
evidence of the advisement and the education . . . the prosecution
would not have filed a Watson murder in this case.” The court
therefore ruled that the prior conviction was admissible and “all
of the educational aspects and advisements are in.” During that
hearing, the prosecutor argued that the “central issue in this case
is going to be intent; that being implied malice and knowledge of
the dangers of driving under the influence resulting in death to
another.” Defense counsel acknowledged that a lot “of evidence
about what Mr. Lopez learned after his arrest [in 2013] is going
to come in,” and objected only to the admission of the underlying
facts of the DUI.
In his reply brief, appellant cites only this objection in
5
response to respondent’s forfeiture argument.
10
Similarly, when defense counsel objected during trial
regarding the unclear initials on the plea waiver, the prosecutor
again argued that the evidence “goes to the central issue” of
defendant’s knowledge regarding drinking and driving. The
court overruled appellant’s objection. Had appellant objected
below on the grounds he now asserts, the trial court could have
addressed the asserted errors and the prosecution would have
had the chance to cure them. For example, with respect to
appellant’s claim that the court created a conclusive
presumption, the prosecution could have omitted the court’s
prefatory statement that “I’m required to advise you” from the
evidence of the plea. Similarly, with respect to the hearsay
objection, the prosecutor could have sought to admit the
advisements through an appropriate witness or stipulation.
Appellant also argues that these objections would have
been futile. The record does not support this claim. First,
regarding his conclusive presumption claim, he suggests that
once the trial court overruled his objection regarding the initials
on the plea waiver form, “any other Watson advisement objection
would have been futile.” He does not explain why he would have
been unable to object to the same evidence on different grounds.
Second, with respect to the hearsay objection, appellant
acknowledges that the primary case upon which he relies, People
v. Sanchez (2016) 63 Cal. 4th 665, was issued almost a year before
his trial. As such, he is not entitled to rely on the rule that an
objection is not required when it “is based on a change in the law
that the appellant could not reasonably have been expected to
foresee.” (Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308,
1334.)
11
Finally, appellant contends that his assertion of a due
process violation flowing from the purported conclusive
presumption has not been forfeited. But the cases appellant cites
apply only to a narrow subset of due process arguments that may
be raised for the first time on appeal. Where new arguments “do
not invoke facts or legal standards different from those the trial
court itself was asked to apply, but merely assert that the trial
court’s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of
violating the Constitution,” then to that limited extent,
“defendant’s new constitutional arguments are not forfeited on
appeal.” (People v. Ervine (2009) 47 Cal. 4th 745, 771, fn. 12;
accord People v. Partida, supra, 37 Cal.4th at p. 435.) This
exception to forfeiture does not apply here. Appellant has not
merely applied a due process gloss to objections he raised below.
Instead, he has raised entirely new objections and included a due
process claim. Under these circumstances, appellant has
forfeited his objections to the Watson advisements.
II. Jury Instructions
Appellant raises three separate claims of instructional
error related to his murder conviction. First, he asserts that the
trial court incorrectly instructed the jury on the definition of
implied malice. Second, he argues the court had a sua sponte
duty to give a unanimity instruction as to the two separate acts
that could have served as the basis for a murder conviction.
Finally, he claims the trial court erred in refusing to instruct on
lesser included offenses. We review such claims de novo. (See
People v. Cole (2004) 33 Cal. 4th 1158, 1210; People v. Waidla
(2000) 22 Cal. 4th 690, 739 [de novo review of failure to instruct
on lesser-included offense].)
12
A. Definition of implied malice
Appellant challenges the court’s instruction to the jury on
implied malice. The trial court instructed the jury with
CALCRIM No. 520, which provides, in pertinent part, that a
defendant acted with implied malice if he or she committed an
act and the “natural and probable consequences of the act were
dangerous to human life.” Appellant did not object to this portion
of the instruction at trial.
Our Supreme Court has explained that two lines of
decisions have developed reflecting judicial attempts to
“‘translate this amorphous anatomical characterization of implied
malice into a tangible standard a jury can apply.’” (People v.
Nieto Benitez (1992) 4 Cal. 4th 91, 103 (Nieto Benitez).) As a
result, the physical component of implied malice can be phrased
in two ways. (Id. at pp. 103-104; People v. Watson, supra, 30
Cal.3d at p. 300.) In one formulation, implied malice exists when
a person commits “an act, the natural consequences of which are
dangerous to life.” (Nieto Benitez, supra, 4 Cal.4th at p. 104.) In
the alternate formulation, malice may be implied when a person
“does an act with a high probability that it will result in death.”
(Ibid., citing People v. Thomas (1953) 41 Cal. 2d 470, 480
(Thomas).)
Appellant contends the trial court erred by failing to
instruct the jury with the Thomas formulation of implied malice
“at a minimum”: that the defendant commit an act “with a high
probability that it will result in death.” This argument has been
squarely rejected by our Supreme Court, which has consistently
upheld the formulation reflected in CALCRIM No. 520 and given
here. For example, in Nieto Benitez, supra, 4 Cal.4th at p. 111,
the court rejected the argument that the standard implied malice
13
instruction was faulty because it did not state “a requirement
that [the] defendant commit the act with a high probability that
death will result.” The Nieto Benitez court confirmed that the
instruction stated an “equivalent” standard by requiring that the
defendant commit “an act whose ‘natural consequences’ are
dangerous to life.” (Ibid.; see also People v. Dellinger (1989) 49
Cal. 3d 1212, 1219 [the two definitions of implied malice state
“one and the same standard”]; Watson, supra, 30 Cal.3d at p.
300.)
We are bound to follow these Supreme Court decisions
upholding the use of CALCRIM No. 520. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal. 2d 450, 455.) We therefore reject
appellant’s argument that the high court’s conclusion that the
two standards are one and the same “does violence to the
meaning of ordinary definitions of words.” The trial court’s
instruction here was consistent with the controlling authorities;
thus, we find no error in its usage.
B. Unanimity instruction
Appellant contends that the trial court erred in failing to
give a unanimity instruction to the jury. Specifically, he claims
that because the evidence established “two separate and distinct
acts of driving under the influence”—first, appellant’s driving
from his home and causing the accident, and second, his driving
away from the accident, refusing to stop, and failing to render
aid—the jury could have found him guilty of murder based on
either act, and may not have unanimously agreed as to one of
them. We conclude no unanimity instruction was required.
A jury verdict must be unanimous in a criminal case.
(People v. Russo (2001) 25 Cal. 4th 1124, 1132.) Thus, “[w]hen an
accusatory pleading charges the defendant with a single criminal
14
act, and the evidence presented at trial tends to show more than
one such unlawful act, either the prosecution must elect the
specific act relied upon to prove the charge to the jury, or the
court must instruct the jury that it must unanimously agree that
the defendant committed the same specific criminal act.” (People
v. Melhado (1998) 60 Cal. App. 4th 1529, 1534.) The unanimity
requirement “‘is intended to eliminate the danger that the
defendant will be convicted even though there is no single offense
which all the jurors agree the defendant committed.’ [Citation.]”
(People v. Russo, supra, 25 Cal.4th at p. 1132.) Where required, a
unanimity instruction must be given sua sponte. (People v.
Dieguez (2001) 89 Cal. App. 4th 266, 274–275.)
Here, a unanimity instruction was not required because
there was insufficient evidence in the record from which the jury
could have found appellant guilty of second degree murder based
on his post-accident conduct alone. (See People v. Burns (1987)
196 Cal. App. 3d 1440, 1458 [“‘If under the evidence presented
such disagreement is not reasonably possible, the instruction is
unnecessary.’”].) Specifically, we are not persuaded by
appellant’s contention that the jury could have found implied
malice required for the murder charge based on his post-accident
conduct. Appellant cites no authority in support of this
proposition. His citation to People v. Cravens (2012) 53 Cal. 4th
500 (Cravens) is inapposite. In Cravens, the court found
substantial evidence to support a second-degree murder
conviction for a defendant who delivered a deadly sucker punch
at the end of a group fight. (Id. at pp. 508-511.) In upholding the
jury’s finding of implied malice, the court relied on the
circumstances of the attack, as well as defendant’s conduct both
before and after the fight, noting that his post-accident
15
callousness “bolstered the finding of implied malice.” (Id. at p.
511.)
Similarly, here, there was extensive evidence (discussed at
length by the prosecutor in closing argument) of appellant’s pre-
accident knowledge of the dangers of drinking and driving, his
decision to drive while impaired on the day of the accident, and
his decision to turn in front of the motorcyclist, supporting a
conclusion that appellant acted with implied malice at the time of
the accident. Notably, the prosecutor argued that the victim’s
death occurred because appellant “made decisions that night,
knowing that they would result in hurting or killing another
person, and said, ‘I’ll take the risk.’” She also argued that
appellant’s conduct in leaving the scene bolstered the showing of
his disregard for human life. She did not suggest, however, that
the jury could find implied malice based solely on appellant’s
post-accident conduct. To the contrary, in her rebuttal argument,
she stated that the test for implied malice was “what was the
defendant’s state of mind before he committed that act?”
Moreover, appellant’s counsel argued several times that his
post-accident conduct was irrelevant to the malice inquiry. He
told the jury that “the question isn’t what happened after the
accident; it’s malice aforethought. . . . The question is what was
going on in his head before the accident.”
We also reject appellant’s argument that “nothing in the
jury instructions prohibited the jury from finding implied malice
based solely on defendant’s post-accident conduct and mental
state.” The jury was instructed with CALCRIM No. 520,
providing that the prosecution must prove that “when the
defendant acted, he had a state of mind called malice
aforethought,” and that implied malice required a finding that “at
16
the time he acted, he knew his act was dangerous to human life.”
Further, at appellant’s request and over the prosecutor’s
objection, the court modified the instruction to include the
following factors that the jury could consider to determine
whether appellant acted with implied malice: “(1) A blood alcohol
level above the legal limit of .08 percent; (2) Whether there is
evidence of pre-drinking intent to drive; (3) Defendant’s
knowledge of the hazards of driving while intoxicated or under
the influence of alcohol; (4) Highly dangerous driving.” Notably,
these factors focus on evidence prior to or at the time of the
accident. We also note that the jury was instructed with
CALCRIM No. 372, which provides that evidence of a defendant’s
flight after the crime “may show that he was aware of his guilt,”
but “cannot prove guilt by itself.” As such, the record does not
support appellant’s assertion that the jury could have based its
second degree murder verdict on his post-accident conduct alone.
Thus, because it was not reasonably possible that the jury
disagreed as to what conduct supported a finding of murder, no
unanimity instruction was necessary. (See, e.g., People v. Brown
(1991) 234 Cal. App. 3d 918, 935 [“a unanimity instruction is
unnecessary ‘unless there is evidence based on which reasonable
jurors could disagree as to which act the defendant committed’
[citation]”].) Appellant’s citations to cases involving unanimity
instructions for other crimes are inapposite. (See People v.
Crawford (1982) 131 Cal. App. 3d 591 [possession of multiple
firearms]; People v. Scofield (1928) 203 Cal. 703, 709-710 [five
different ways to violate hit and run statute]; People v. McNeill
(1980) 112 Cal. App. 3d 330, 335 [four similar acts of assault on
different victims].)
17
C. Lesser included offenses
Appellant requested jury instructions on the following
lesser included offenses to murder: vehicular manslaughter
(§ 192, subd. (c)), vehicular manslaughter while intoxicated
(§ 191.5, subd. (b)), and gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a).) The prosecution objected and the
trial court denied the request, finding that those crimes were not
lesser included offenses as they did not share all the elements of
second degree murder; thus, the court had no authority to give
them without the prosecutor’s consent. Appellant contends this
was error. We disagree.
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. (People v. Breverman (1998)
19 Cal. 4th 142, 154.) “Under California law, a lesser offense is
necessarily included in a greater offense if either the statutory
elements of the greater offense, or the facts actually alleged in
the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also
committing the lesser.” (People v. Birks (1998) 19 Cal. 4th 108,
117; see also People v. Reed (2006) 38 Cal. 4th 1224, 1227–1228.)
Conversely, “California law does not permit a court to instruct on
an uncharged lesser-related crime unless agreed to by the
prosecution.” (People v. Valentine (2006) 143 Cal. App. 4th 1383,
1387 (emphasis added), citing People v. Birks, supra, 19 Cal.4th
at p. 136.)
In a second-degree murder charge, “Malice is implied when
an unlawful killing results from a willful act, the natural and
probable consequences of which are dangerous to human life,
performed with conscious disregard for that danger.” (People v.
18
Elmore (2014) 59 Cal. 4th 121, 133.) In contrast, manslaughter is
“the unlawful killing of a human being without malice.” (§ 192,
subd. (b).) Vehicular manslaughter is a specific type of
manslaughter, involving “driving a vehicle in the commission of
an unlawful act, not amounting to a felony [and with/without]
gross negligence; or driving a vehicle in the commission of a
lawful act which might produce death, in an unlawful manner,
[and with/without] gross negligence.” (§ 192, subd. (c).) Gross
vehicular manslaughter while intoxicated is “the unlawful killing
of a human being without malice . . . in the driving of a vehicle,
where the driving was in violation of [DUI laws], and the killing
was either the proximate result of the commission of an unlawful
act, not amounting to a felony, and with gross negligence, or the
proximate result of the commission of a lawful act that might
produce death, in an unlawful manner, and with gross
negligence.” (§ 191.5, subd. (a).) Vehicular manslaughter while
intoxicated is the same act, without gross negligence. (§ 191.5,
subd. (b).)
Numerous courts have rejected the argument raised by
appellant here, that vehicular manslaughter, vehicular
manslaughter while intoxicated, and gross vehicular
manslaughter while intoxicated are lesser included offenses to
second degree murder. In People v. Sanchez (2001) 24 Cal. 4th
983, 990, overruled on another point in People v. Reed (2006) 38
Cal. 4th 1224, 1228-1229, the Supreme Court considered whether
“the settled practice of treating manslaughter as an offense
necessarily included within murder should be extended” to
vehicular manslaughter crimes. The defendant was convicted of
murder and gross vehicular manslaughter while intoxicated; he
argued that the vehicular manslaughter charge was necessarily
19
included within the murder charge, and he could not be convicted
of both. (Id. at p. 990.) Comparing the elements of the charges,
the Supreme Court found that the “statutory elements of murder
do not include all the elements of the lesser offense. Gross
vehicular manslaughter while intoxicated requires proof of
elements that need not be proved when the charge is murder,
namely, use of a vehicle and intoxication.” (Id. at p. 989.) Since a
second-degree (implied malice) murder conviction does not
necessarily require proof of either of those two elements, the
court concluded that the lesser crime was not necessarily
included within the greater. (Id. at pp. 992-993; see also People v.
Wolfe (2018) 20 Cal.App.5th 673, 685–686 [no error in trial
court’s refusal to instruct on involuntary and/or gross vehicular
manslaughter as neither was a lesser included offense and
prosecution had not agreed to instructions on lesser related
offenses].)
Appellant acknowledges that these vehicular manslaughter
crimes are not lesser included offenses to murder based on a
comparison of their elements (the “elements” test). However, he
urges us to apply the “accusatory pleading” test, under which the
court looks to whether “‘the charging allegations of the
accusatory pleading include language describing the offense in
such a way that if committed as specified [some] lesser offense is
necessarily committed.’” (People v. Montoya (2004) 33 Cal. 4th
1031, 1035 (Montoya).) He further argues we may look beyond
the pleading itself, to evidence adduced at the preliminary
hearing, which “establishes all three types of vehicular
manslaughter.” A similar argument was rejected, however, by
the court in Montoya, which considered “only the pleading for the
greater offense.” (Id. at p. 1036.)
20
Notably, the Montoya court disapproved a contrary holding
in People v. Rush (1993) 16 Cal. App. 4th 20. (Montoya, supra, 33
Cal.4th at p. 1036, fn. 4.) In People v. Rush, the information
alleged one count of robbery and one count of grand theft of a
motor vehicle, both on the same date and involving the same
victim. (Rush, supra, at p. 27.) The court noted that “[t]he
pleading contained no further recitation of a connection between
the offenses; however, the evidence at the preliminary hearing
and at trial unequivocally established that the automobile was
part of the loot stolen in the robbery.” (Ibid.) As such, the court
in Rush concluded that the pleading for the greater offense
included the requisite allegations for the lesser offense. (Ibid.)
Here, appellant advances the same argument as that made
in Rush and disapproved by Montoya. The information here
alleged in count one that on or about October 13, 2015, appellant
murdered the victim with malice aforethought; in count two, it
alleged that on the same date, appellant committed hit and run
driving resulting in death or serious injury to an unnamed
person. The pleading contains no further information connecting
the two crimes. As such, appellant necessarily argues that we
must also look to the preliminary hearing transcript. We decline
to do so under Montoya and its progeny. “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.” (Montoya, supra, 33 Cal.4th at p. 1036; see also People
v. Smith (2013) 57 Cal. 4th 232, 244 [court “need only examine the
accusatory pleading”]; People v. Chaney (2005) 131 Cal. App. 4th
253, 257 [“‘to determine whether a defendant is entitled to
instruction on a lesser uncharged offense—we consider only the
21
pleading for the greater offense’”].) Appellant’s reliance on People
v. Ortega (2015) 240 Cal. App. 4th 956, 968, which looked beyond
the accusatory pleading, is therefore inapposite. (See People v.
Macias (2018) 26 Cal.App.5th 957, 964 (rejecting Ortega’s
“‘expanded accusatory pleading test’” as contrary to Montoya).)
Appellant next argues that, even if the uncharged crimes
were lesser related rather than lesser included offenses, the trial
court nevertheless erred in refusing to instruct on the elements of
those offenses. He claims such instructions were necessary to
allow the jury to compare the elements of the crimes to
“determine whether the prosecution only proved some form of
vehicular manslaughter instead of implied malice murder.”
In essence, appellant contends that he has a right to have
the jury instructed on the elements of uncharged crimes in order
to urge the jury that he is not guilty of the charged offense but
that he is guilty of something else. An accused is not “entitled to
instructions on offenses for which he is not charged in order to
urge the jury that he could have been convicted of something
other than what is alleged.” (People v. Valentine, supra, 143
Cal.App.4th at p. 1387.) Unsurprisingly, appellant cites no
authority to support this proposition. Moreover, we note that
while the court refused to instruct the jury on the elements of
three uncharged lesser related offenses, it did allow defense
counsel to argue about lesser charges that could have been
brought. Defense counsel did so, arguing that there were “a
myriad” of other crimes appellant could have been charged with,
including manslaughter and gross vehicular manslaughter while
intoxicated. As to each, he argued that appellant “did it; he is not
charged with it.” In sum, we conclude appellant has failed to
22
demonstrate error as to the trial court’s refusal to instruct the
jury on the uncharged vehicular manslaughter offenses.
III. Defense Counsel’s Concession of Hit and Run
During his opening statement and closing argument,
defense counsel conceded appellant’s guilt as to the second count
of felony hit and run, focusing instead on the murder count.
Appellant argues that his counsel’s concession was tantamount to
a guilty plea on that count. Further, because the record is silent
as to whether appellant knowingly waived his right to trial on the
hit and run, he contends the absence of a valid waiver requires
reversal. He asserts that this error infected his murder
conviction as well. We conclude counsel’s concession was not the
equivalent of a guilty plea; therefore, no waiver was required.
A. Factual background
Defense counsel’s opening statement included an
unequivocal concession on the hit and run count. He stated that
appellant “caused the accident. No dispute. And then he drove
away.” A few moments later, he conceded, “As to the hit and run,
he’s guilty of it; I’ll say that again at the end. There are no
games being played here. . . . But he’s not guilty of murder.” The
remainder of the defense opening statement focused on the
murder charge.
Similarly, in closing argument, defense counsel focused
solely on the murder charge, stating that as to the hit and run
charge, “I’ve never disputed it. He’s guilty of it; he should be
punished for it.” In her closing, the prosecutor noted that she
would not “touch on the second count, the hit and run; I think
that’s very obvious that he is guilty of that count.”
23
B. Effect on hit and run conviction
“When a criminal defendant enters a guilty plea, the trial
court is required to ensure that the plea is knowing and
voluntary. [Citation.] As a prophylactic measure, the court must
inform the defendant of three constitutional rights—the privilege
against compulsory self-incrimination, the right to trial by jury,
and the right to confront one’s accusers—and solicit a personal
waiver of each.” (People v. Cross (2015) 61 Cal. 4th 164, 170.)
Accordingly, in the event of a guilty plea or other conduct
tantamount to a plea, “the record must demonstrate that the
defendant voluntarily and intelligently waived his constitutional
trial rights.” (People v. Farwell (2018) 5 Cal.5th 295, 300
(Farwell).)
The starting point for our analysis, therefore, is whether
defense counsel’s concession of guilt during argument on the hit
and run charge was tantamount to a guilty plea. If not, there
was no error. If so, the concession was permissible only if based
on a knowing and informed waiver by appellant of his right to
trial on that count. (See McCoy v. Louisiana (2018) __U.S.__, 138
S. Ct. 1500, 1508 (McCoy).)6
Respondent contends we are bound by our Supreme Court’s
conclusion on a similar partial concession of guilt in People v.
Cain (1995) 10 Cal. 4th 1, 39 (Cain), overruled on other grounds
in People v. Moon (2005) 37 Cal. 4th 1, 17. We agree. In Cain,
6Both McCoy and Farwell, supra, 5 Cal.5th 295 were
published after the parties had completed briefing in this appeal.
We granted appellant’s request to allow the parties to submit
supplemental letter briefs addressing McCoy. We also requested
and received supplemental briefing addressing Farwell. The
parties provided additional discussion of both cases in their
briefing on respondent’s request for rehearing.
24
defense counsel told the jury during argument that the defendant
was guilty of burglary and multiple felony murder. (Id. at pp. 29-
30.) On appeal, the defendant argued that these statements were
the equivalent of a guilty plea on those charges, and therefore
that the trial court was required to obtain a plea waiver. (Id. at p.
30.) The court rejected this argument, holding that “trial
counsel’s decision not to contest, and even expressly to concede,
guilt on one or more charges at the guilt phase of a capital trial is
not tantamount to a guilty plea.” (Ibid.) The Supreme Court has
reiterated this holding in numerous cases. (See People v. Lucas
(1995) 12 Cal. 4th 415, 446 [“It is [ ] settled that counsel's
concession of guilt on one or more charges at the guilt phase of a
capital trial is not the equivalent of a guilty plea, requiring
defendant's express waiver.”]; People v. Freeman (1994) 8 Cal. 4th
450, 497; People v. Griffin (1988) 46 Cal. 3d 1011, 1029,
disapproved on other grounds by People v. Riccardi (2012) 758,
824, fn. 32, People v. Hendricks (1987) 43 Cal. 3d 584, 592-594
(Hendricks).)7
Appellant contends his counsel’s concession was the
equivalent of a guilty plea on count two, arguing that the
concession effectively admitted all of the elements of the hit and
run and relieved the prosecution of its burden of proof on that
count. He cites Farwell, supra, 5 Cal.5th 295 in support of this
proposition. We find Farwell distinguishable. There, the
7Appellant notes that these cases all are capital cases.
While the relevant holdings are therefore in the context of the
guilt phase of a capital trial, we see no basis to limit the holding
to capital cases, nor has appellant suggested any. Appellant also
asserts that these cases are factually and legally distinguishable,
but has not identified any material distinguishing features.
25
defendant was charged with gross vehicular manslaughter and
misdemeanor driving with a suspended license. (Id. at p. 298.)
During trial, the parties entered into a stipulation admitting all
the elements of the misdemeanor charge; the court later
instructed the jury that it must accept the stipulated facts as
true. (Id. at pp. 298-299.) The court did not advise the defendant
“of the constitutional rights implicated by a guilty plea or the
stipulation. Nor did it solicit a personal waiver of those rights.”
(Id. at p. 299.) Crucially, the Supreme Court found that a
“stipulation that admits all of the elements of a charged crime
necessary for a conviction is tantamount to a guilty plea.” (Ibid.)
The court reasoned that Farwell’s “stipulation conclusively
established the stipulated facts as true and completely relieved
the prosecution of its burden of proof on count 2. While the jury
was still required to return a verdict on that count, its limited
function did not amount to a jury trial in the constitutional
sense.” (Id. at p. 300.) Thus, because the stipulation conclusively
established all of the elements of the misdemeanor, it made “the
guilty verdict a foregone conclusion.” (Id. at pp. 307–308.)
Conversely, here, there was no stipulation admitting the
elements of the hit and run as an evidentiary matter. Instead,
the jury was instructed that the prosecution had to prove guilt on
all counts beyond a reasonable doubt and that statements by
counsel were not evidence. Thus, the prosecution was still
required to present “competent, admissible evidence establishing
the essential elements” of each charge. (Florida v. Nixon (2004)
543 U.S. 175, 188.) The prosecutor’s remark during closing
argument that appellant’s guilt on the hit and run was “obvious”
and decision not to argue the evidence on that count did not
26
change the burden of proof, nor did it limit the scope of the jury’s
role.
Appellant cites no authority extending the rationale of
Farwell to a case such as this one, concerning a concession made
during closing argument. Indeed, courts have repeatedly
distinguished between such circumstances and a guilty plea or its
equivalent. (See Florida v. Nixon, supra, 543 U.S. at p. 188
[holding concession not tantamount to guilty plea because
defendant “retained the rights accorded a defendant in a criminal
trial”]; Boykin v. Alabama (1969) 395 U.S. 238, 242-243, and fn. 4
[guilty plea is “more than a confession which admits that the
accused did various acts,” it is a “stipulation that no proof by the
prosecution need be advanced”]; cf. Brookhart v. Janis (1966) 384
U.S. 1, 3 [waiver required where defense agreed that the
prosecution need only prove a “prima facie case,” that the case
would not be contested, and the defendant would not cross-
examine witnesses].) As the court explained in Hendricks, supra,
43 Cal. 3d 584, the rationale of the waiver requirement “‘is to
“assure that the record demonstrably discloses the defendant
knows of and voluntarily waives the three specified rights . . .
surrendered by a guilty plea.” [Citations.] Th[is] mandate . . .
applies only to pleas of guilty and situations tantamount to a plea
of guilty. [Citation.] Nothing in our decisions . . . indicates that
the principles expressed therein were intended to apply to jury
trials, even where the evidence of guilt is overwhelming. When a
defendant undergoes a jury trial any competent defense counsel
will inform him of his right to call witnesses on his own behalf, of
his right to testify or not to testify, and, in the absence of unusual
circumstances, will cross-examine the witnesses for the
prosecution.’” (Id. at p. 592.) As such, the waiver requirement
27
“applies only when the defendant agrees to a submission
procedure, such as a guilty plea or a submission on the
preliminary hearing transcript, by virtue of which he surrenders
one or more of the three specified rights. Second, there is no such
surrender when the defendant undergoes - and thereby exercises
his right to - a jury trial and has the opportunity to cross-
examine the witnesses against him and to refuse to incriminate
himself.” (Id. at pp. 592–593.) Here, the record reflects no such
surrender of appellant’s rights; thus, we cannot conclude
counsel’s concession was the equivalent of a guilty plea.
Appellant also argues that this case should be guided by
McCoy, supra, 138 S. Ct. 1500. In McCoy, defense counsel
informed defendant of his plan to concede guilt on the
commission of three murders in an attempt to avoid a death
sentence for defendant. (McCoy, supra, 138 S.Ct. at p. 1506.)
The defendant insisted he did not commit the murders and
adamantly objected to any admission of guilt. (Ibid.) During his
opening statement and closing argument, over defendant’s
objection, defense counsel told the jury the evidence was
“unambiguous,” that defendant “committed three murders.” (Id.
at p 1507.)
The Supreme Court concluded that “counsel may not admit
her client’s guilt of a charged crime over the client’s intransigent
objection to that admission.” (McCoy, supra, 138 S. Ct. at p.
1510.) As the McCoy court noted, “[s]ome decisions . . . are
reserved for the client—notably, whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo an
appeal.” (Id. at 1508.)
Here, unlike in McCoy, there is no evidence that appellant
raised any objection to his counsel’s decision to concede guilt on
28
the hit and run charge. Nevertheless, appellant urges us to apply
McCoy’s analysis of a defendant’s constitutional right to control
the objectives of his or her own defense to cases, such as this one,
where the defendant has not expressly raised an objection. We
conclude such an extension is not supported by the controlling
authority. In fact, the court in McCoy explicitly distinguished
Florida v. Nixon, supra, 543 U.S. at p. 186, in which defense
counsel several times explained to the defendant a proposed
concession strategy, but the defendant was unresponsive. The
Nixon court held that “when counsel confers with the defendant
and the defendant remains silent, neither approving nor
protesting counsel’s proposed concession strategy, ‘[no] blanket
rule demand[s] the defendant’s explicit consent’ to
implementation of that strategy.” (McCoy, supra, 138 S.Ct. at p.
1505, quoting Nixon, supra, 543 U.S. at p. 192.)
This analysis is consistent with our Supreme Court’s
holding in Cain, supra, 10 Cal.4th at p. 30 and similar cases. In
Cain, the court held it was “not the trial court’s duty to inquire
whether the defendant agrees with his counsel’s decision to make
a concession, at least where, as here, there is no explicit
indication the defendant disagrees with his attorney’s tactical
approach to presenting the defense.” (Ibid., citing People v.
Freeman, supra, 8 Cal.4th at p. 497; People v. Griffin, supra, 46
Cal.3d at p. 1029; People v. Hendricks, supra, 43 Cal.3d at 593-
594; see also People v. Frierson (1985) 39 Cal. 3d 80, 818, fn. 8
[“nothing in this opinion is intended to suggest that - in the
absence of such an express conflict [between defendant and
counsel] - a court is required to obtain an on-the-record, personal
waiver from the defendant”].) In sum, we have found no
authority, nor has appellant cited any, allowing extension of
29
McCoy’s holding to a situation where the defendant does not
expressly disagree with a decision relating to his right to control
the objective of his defense.
Finally, to the extent appellant contends his counsel’s
concessions constituted ineffective assistance of counsel, we are
not persuaded. The court in Cain squarely rejected this
argument, noting, “‘[t]o the extent defendant is arguing that it is
necessarily incompetence for an attorney to concede his or her
client’s guilt of murder [or burglary and murder as in this case],
the law is otherwise.’ [Citation.] Furthermore, as pointed out
above, the record does not demonstrate counsel ignored ‘any
express wish on defendant’s part to present an active defense’
with regard to either the felony-murder or burglary counts.”
(Cain, supra, 10 Cal.4th at pp. 30–31.) In addition, appellant
cannot show that counsel’s decision was outside the range of
reasonable tactical decisions, particularly given the largely
undisputed evidence as to the hit and run charge and the
seriousness of the murder charge. (See, e.g., People v. Freeman,
supra, 8 Cal.4th at p. 498 [“Recognizing the importance of
maintaining credibility before the jury, we have repeatedly
rejected claims that counsel was ineffective in conceding various
degrees of guilt.”].) This result is unchanged by appellant’s claim
that the decision was unreasonable because of the “obvious
‘implied malice’ implications” of the concession. We have already
rejected the suggestion that the jury could have found implied
malice to support the murder charge based on the same post-
accident conduct supporting the hit and run charge.
30
Therefore, we affirm the conviction on the hit and run
charge.8
IV. Section 654 Error
Appellant argues that his convictions for hit and run
driving and murder were based on the commission of “a single act
of driving under the influence,” and therefore that the court
should have stayed the sentence on his hit and run conviction
under section 654. We disagree.
Section 654, subdivision (a), provides: “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.” It
“precludes multiple punishments for a single act or indivisible
course of conduct.” (People v. Hester (2000) 22 Cal. 4th 290, 294.)
The defendant’s intent and objective, not the temporal proximity
of his or her offenses, determine whether multiple offenses
constitute an indivisible course of conduct. (People v. Hicks
(1993) 6 Cal. 4th 784, 789.) A defendant who acts pursuant to a
single objective may be found to have harbored a single intent
and therefore may be punished only once. (Ibid.) If, on the other
hand, defendant harbored “multiple criminal objectives,” which
were independent of and not merely incidental to each other, he
may be punished for each statutory violation committed in
pursuit of each objective, “even though the violations shared
common acts or were parts of an otherwise indivisible course of
In light of this conclusion, we need not reach appellant’s
8
argument that his counsel’s concession of guilt as to the hit and
run charge requires reversal of the murder conviction.
31
conduct.” (People v. Beamon (1973) 8 Cal. 3d 625, 639,
disapproved on other grounds by People v. Mendoza (2000) 23
Cal. 4th 896.)
“The question whether section 654 is factually applicable to
a given series of offenses is for the trial court, and the law gives
the trial court broad latitude in making this determination. Its
findings on this question must be upheld on appeal if there is any
substantial evidence to support them.” (People v. Hutchins (2001)
90 Cal. App. 4th 1308, 1312; see also People v. Saffle (1992) 4
Cal. App. 4th 434, 438.) We view the evidence in the light most
favorable to the sentence and presume in support thereof the
existence of every fact the trier of fact reasonably could deduce
from the evidence. (People v. Hutchins, supra, at pp. 1312-1313.)
In People v. Butler (1986) 184 Cal. App. 3d 469 (Butler), the
court rejected the application of section 654 under similar
circumstances. There, the defendant was convicted of vehicular
manslaughter and felony hit and run arising out of a drunk
driving incident. (Id. at p. 471.) On appeal, he argued that he had
engaged in “one indivisible course of conduct” by driving under
the influence of alcohol, causing a fatal accident, and then fleeing
the scene. (Id. at p. 472.) The court disagreed, concluding that
there was “a divisible course of conduct based upon the intent
and objective of defendant. . . . In the act of vehicular
manslaughter, defendant was acting with general intent; he
negligently drove a motor vehicle while under the influence of
alcohol and caused a fatal accident. Defendant then violated
Vehicle Code section 20001 by intentionally leaving the scene of
the accident instead of remaining and rendering aid.” (Id. at pp.
473-474.) The court found that defendant’s intent in fleeing the
32
scene was “to flee in an attempt to conceal his identity and his
state of inebriation.” (Id. at p. 474.)
Similarly, here, the evidence supports the conclusion that
appellant acted with multiple objectives and therefore engaged in
a divisible course of conduct. Indeed, appellant himself identified
a different objective for count two—admitting to police that he
fled the scene in order to avoid arrest because he had been
drinking and driving.
Appellant argues that Butler is distinguishable because
“the hit and run may have been used by the jury to establish
implied malice.” We rejected appellant’s contention that the jury
could have based the murder conviction on his act of leaving the
crime scene in section II.B. ante. We find the court’s reasoning in
Butler squarely applicable to this case. Accordingly, section 654
does not preclude multiple punishment here.
V. Cumulative Error
Appellant also contends that the cumulative effect of the
errors he has identified requires reversal of the murder
conviction. Because we found no errors, we reject this claim.
DISPOSITION
The judgment is affirmed.
COLLINS, J.
We concur:
MANELLA, P. J. MICON, J.*
Judge of the Los Angeles Superior Court, assigned by the Chief
*
Justice pursuant to article VI, section 6 of the California
Constitution.
33