People v. Gallegos CA2/6

Filed 12/16/20 P. v. Gallegos CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303623
(Super. Ct. No. 2019017979)
Plaintiff and Respondent, (Ventura County)
v.
JUAN DE DIOS GALLEGOS
III,
Defendant and Appellant.
Juan de Dios Gallegos appeals his conviction, by jury, of
second degree murder in the death of Michael James Holley on
May 23, 2019. (Pen. Code, §§ 187, subd. (a), 189.)1 The jury
further found appellant used a deadly weapon, a pickup truck, in
committing the murder. (§ 12022, subd. (b)(1).) The trial court
sentenced appellant to a total term in state prison of 36 years to
life. He contends the trial court violated his right to due process
All statutory references are to the Penal Code unless
1
otherwise stated.
and his right to present a defense when it instructed the jury, in
terms of CALCRIM No. 625, that voluntary intoxication is not
relevant to the question of whether he acted with conscious
disregard for human life. Appellant further contends his trial
counsel rendered ineffective assistance because counsel failed to
request that the instruction be modified to allow the jury to
consider his voluntary intoxication. We affirm.
Facts
Appellant was drinking with his friend Tereso Jimenez on
the night of May 23, 2019. They ran out of alcohol so, at about 11
p.m., appellant drove his Dodge Ram Dakota pickup truck to an
Oxnard strip mall to buy more. While there, the two men tried
unsuccessfully to pick up a couple of women who were hanging
out in the parking lot. Appellant went into the liquor store and
purchased some alcohol.
Around the same time, Michael Holley, a local transient,
and Anthony Miinster, a friend of Holley’s, walked through the
parking lot. The two men said hello to the women and continued
walking through the lot toward Azalea Street. They crossed
Azalea Street and entered an alley. The alley runs parallel to
Ventura Road and Mariposa Street, between Azalea Street to the
south and Fuchsia Street to the north. There, they met an
acquaintance, Brandy Pinkard, who asked them for a cigarette.
The trio stood talking in the alley while Holley retrieved a
cigarette for Pinkard.
Meanwhile, appellant returned to his pickup truck and
drove out of the parking lot, exiting on to Ventura Road, heading
north. After crossing Azalea Street, appellant drove another
block before making a U-turn on Bevra Avenue. He then drove
back down Ventura Road and turned left onto Azalea Street.
2
Appellant drove past the entrance to the alley, then stopped and
made a three-point turn. He turned off his headlights and
entered the alley, accelerating as he drove along its left side.
Pinkard and Miinster were standing on the left side of the
alley. They heard appellant’s truck accelerate and jumped out of
the way. Holley, who was standing to the right, did not seem to
notice appellant’s truck speeding toward him. Although there
was plenty of room on the left, appellant suddenly swerved to the
right. The truck hit Holley, throwing him into the air. Holley
landed on his back along the left side of the alley. Even though
there was room to go around him, appellant redirected his truck
to the left and drove over Holley’s body. Then he continued
driving along the alley without stopping. Holley died as a result
of his injuries.
Brandy Pinkard testified that appellant’s truck was loud
and sounded like it was speeding up as it approached them. She
saw the truck veer to the left and then to the right, as if it was
targeting Holley.
Dalia Mendoza was sitting in the carport of her apartment
building, texting on her phone, when the collision occurred. She
testified that she watched as the driver “pulls himself forward
towards the steering wheel and turns his head and hits him
[Holley], aims the car straight at him.” The impact from the first
collision threw Holley from the right side of the alley to the left.
The truck ran over Holley as he was laying on his back on the
pavement. It did not stop. The truck’s headlights stayed off until
the driver left the alley at Fuchsia Street.
Appellant’s passenger, Tereso Jimenez, testified that
appellant did not explain why he made the U-turn and drove
back to the alley. Jimenez didn’t ask questions. He thought the
3
collision was an accident because appellant had no reason to hit
Holley intentionally. Nothing that happened that evening would
have caused anger or aggression. Once in the alley, appellant
steered the truck to the right, then to the left and back to the
right. They hit Holley twice. After hitting Holley, appellant said,
“‘Fuck, I got him,’” or “‘I got that fool.’”
According to an accident reconstruction expert with the
Oxnard Police Department, tire marks in the alley demonstrate
that appellant’s vehicle was accelerating, not slowing, before the
impact. A California Highway Patrol officer testified that he
thoroughly inspected the pickup truck. He found no mechanical
issues with the steering, throttle, brakes, tires, wheels or lights
that would affect a driver’s ability to operate it safely.
The investigating detective from the Oxnard Police
Department reviewed extensive security camera video of
appellant and his pickup truck as he entered and exited the
parking lot. He saw no indication that appellant was under the
influence of alcohol or another substance. Until appellant drove
into the alley and turned off his headlights, he was driving safely.
He was wearing his seatbelt, and he used the turn indicator light
as he entered and exited the parking lot, and as he made the left
turn on to Azalea Street immediately before turning into the
alley. Surveillance camera video from the deli showed that
appellant was not staggering or swaying while walking in the
store. He had no difficulty retrieving his wallet or getting the
correct bills for his purchase.
Appellant testified that he had been drinking whiskey and
beer with Jimenez all afternoon. When they got to the deli,
appellant saw the women in the parking lot and was able to get
Lidia Quiroz’s phone number. After he bought more alcohol, he
4
started driving home. Appellant decided to go back and drive
through the alley because he was hoping to find Quiroz there and
invite her to his place for the night. He wanted to sneak up on
Quiroz, to make a “dramatic entrance,” so he turned off the
headlights and gunned the engine. Then he lost control of the
truck, swerved and hit Holley. He drove away because he
panicked.
Discussion
The trial court instructed the jury on the charged offense of
first degree murder, (§ 187, subd. (a)), and the lesser included
offenses of second degree murder (§ 189, subd. (b)), and
involuntary manslaughter. (§ 192, subd. (b).) At appellant’s
request, the jury was further instructed, in terms of CALCRIM
No. 625, that it could consider his voluntary intoxication “only in
deciding whether [appellant] acted with an intent to kill, or the
defendant acted with deliberation and premeditation. [¶] [¶] You
may not consider evidence of voluntary intoxication for any other
purpose.”2 (CALCRIM No. 625.)
Appellant contends the voluntary intoxication instruction
deprived him of due process and prevented him from presenting a
2 The instruction states, “You may consider evidence, if any,
of the defendant’s voluntary intoxication only in a limited way.
You may consider that evidence only in deciding whether the
defendant acted with an intent to kill, or the defendant acted
with deliberation and premeditation . . . . [¶] A person is
voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance
knowing it could produce an intoxicating effect, or willingly
assuming the risk of that effect. [¶] You may not consider
evidence of voluntary intoxication for any other purpose.”
(CALCRIM No. 625.)
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defense because it did not permit the jury to consider evidence of
voluntary intoxication to negate the mental state required for
implied malice second degree murder. He further contends he
received ineffective assistance from his trial counsel because
counsel did not request that the voluntary intoxication
instruction be modified to apply implied malice second degree
murder.
CALCRIM No. 625, the voluntary intoxication instruction,
is based on Penal Code section 29.4, which provides, “Evidence 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., subd. (b).) Appellant contends section 29.4,
subdivision (b) deprives him of due process and the right to
present a defense because it prevents the jury from considering
his voluntary intoxication in deciding whether he was capable of
acting with conscious disregard for life when he drove down the
alley. We are not persuaded.
In Montana v. Egelhoff (1996) 518 U.S. 37, the United
States Supreme Court upheld against a due process challenge a
Montana statute providing, “that voluntary intoxication ‘may not
be taken into consideration in determining the existence of a
mental state which is an element of [a criminal] offense.’” (Id at
pp. 39-40.) The Court explained that a state could, without
violating due process, define the elements of an offense in a way
that made evidence of voluntary intoxication irrelevant. It could
not, however, define an offense to make intoxication relevant and
then enact a statute excluding that entire category of relevant,
exculpatory evidence. (Id. at pp. 57-58.)
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People v. Soto (2018) 4 Cal.5th 968 (Soto) considered
whether section 29.4 complied with the due process principles
outlined in Montana. Soto explained that section 29.4 excludes
evidence of voluntary intoxication “on the question of whether a
defendant believed it necessary to act in self-defense.” (Soto,
supra, at p. 970.) Our Supreme Court then rejected a due process
challenge to the statute, concluding that it reflects “‘“a legislative
determination that, for reasons of public policy, evidence of
voluntary intoxication to negate culpability shall be strictly
limited,” and “nothing in the enactment . . . deprives a defendant
of the ability to present a defense or relieves the People of their
burden to prove every element of the crime charged beyond a
reasonable doubt . . . .” . . .’” (Id. at p. 981, quoting People v.
Carlson (2011) 200 Cal.App.4th 695, 707-709 (Carlson), quoting
People v. Martin (2000) 78 Cal.App.4th 1107, 1117 (Martin).)
“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, at p. 981.)
Soto relied on three court of appeal opinions, each of which
held that former section 22 (current section 29.4) does not violate
due process by excluding evidence of voluntary intoxication on
the question of whether a defendant acted with implied malice.
(Carlson, supra, 200 Cal.App.4th 695; Martin, supra, 78
Cal.App.4th 1107; People v. Timms (2007) 151 Cal.App.4th 1292.)
As the court noted in Timms, section 29.4 declares that
“voluntary intoxication is irrelevant to proof of the mental state
of implied malice or conscious disregard. Therefore, it does not
lessen the prosecution’s burden of proof or prevent a defendant
7
from presenting all relevant defensive evidence.” (Timms, supra,
at pp. 1300-1301.)
We are bound to follow Soto. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, we
reject appellant’s contention. “[S]ection 29.4 prohibits the use of
evidence of voluntary intoxication to establish that a defendant
acted without implied malice.” (Soto, supra, 4 Cal.5th at p. 975.)
The statute does not violate due process because it reflects a
legislative determination that voluntary intoxication is irrelevant
to proof of that mental state. (Id. at p. 981.) The trial court here
did not err in so instructing the jury.
For the same reason, we reject appellant’s contention that
his trial counsel was ineffective because counsel failed to request
“expanded consideration” of voluntary intoxication evidence. Any
such request would have been futile. CALCRIM No. 625 correctly
explains section 29.4, and section 29.4 does not violate due
process. “Counsel may not be deemed incompetent for failure to
make meritless objections.” (People v. Coddington (2000) 23
Cal.4th 529, 625, overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069.)
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.