People v. Woodfill CA4/1

Filed 7/12/23 P. v. Woodfill CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079814
Plaintiff and Respondent,
v. (Super. Ct. No. SCE384091)
MICHAEL JASON WOODFILL,
ORDER MODIFYING
OPINION AND DENYING
Defendant and Appellant.
REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on June 23, 2023, be
modified as follows:
On page 10, at the end of the last sentence of the first paragraph
(beginning with “As Nieto Benitez establishes, . . . .”), add as footnote 4 the
following footnote, which will require the renumbering of all subsequent
footnotes:
4 In a petition for rehearing, filed July 7, 2023, Woodfill argued
that based on our Supreme Court’s June 29, 2023 opinion in People v.
Reyes (June 29, 2023, S270723) __ Cal.5th ___ [2023 WL 4242765], it is
no longer true that a trial court has no sua sponte duty to modify an
implied malice jury instruction to include the alternative formulation
expressed in the Thomas test. We reject the argument, as Reyes does
not purport to address, let alone overrule, the holding in Nieto Benitez,
supra, 4 Cal.4th at page 111, that no such sua sponte duty exists.
There is no change in judgment.
The petition for rehearing is denied.
HUFFMAN, Acting P. J.
Copies to: All parties
2
Filed 6/23/23 P. v. Woodfill CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079814
Plaintiff and Respondent,
v. (Super. Ct. No. SCE384091)
MICHAEL JASON WOODFILL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed.
George L. Schraer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski, Donald W. Ostertag and Maxine Hart, Deputy Attorneys General,
for Plaintiff and Respondent.
A jury convicted Michael Jason Woodfill of second degree murder (Pen.
Code, § 187, subd. (a))1 after he drove under the influence of alcohol and
struck and killed a pedestrian. The trial court sentenced Woodfill to an
indeterminate prison term of 15 years to life.
Woodfill contends (1) the trial court erred by refusing to instruct the
jury with his proposed modification to CALCRIM No. 520, regarding implied
malice; (2) the trial court should have sua sponte instructed on either
vehicular manslaughter (§§ 191.5, subds. (a), (b), 192, subd. (c)) or
involuntary manslaughter (§ 192, subd. (b)) as a lesser included offense of
murder; and (3) the trial court prejudicially erred in allowing the People to
show the jury a photograph of the victim while she was alive.
We conclude that Woodfill’s arguments lack merit, and we accordingly
affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of August 27, 2018, Woodfill was driving his large
pickup truck in a northbound direction on a two-lane road. After drifting
onto the right-hand dirt shoulder, Woodfill made a sharp left turn back onto
the road and lost control of his vehicle. Woodfill’s truck struck S.G., who was
jogging. The force of the impact launched her down the embankment next to
the southbound side of the road. Woodfill’s truck plunged down the same
embankment. Woodfill was unharmed, but S.G. died from her injuries.
During a field sobriety test at the scene of the accident, a law
enforcement officer concluded that Woodfill was intoxicated. Blood drawn
more than two hours after the accident showed a blood alcohol content of
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
between .203 to .227 percent, which is equivalent to nine to 10 standard
alcoholic drinks. Based on certain assumptions about when the alcohol was
consumed, an expert calculated that Woodfill’s blood alcohol content at the
time of the accident would have been between .20 and .28 percent. An
investigation by law enforcement determined that driving under the
influence was a factor in the collision, along with an unsafe turning
movement.
An amended information charged Woodfill with one count of murder.
At trial, the jury heard evidence that Woodfill had a history of convictions for
driving under the influence. In connection with those convictions, Woodfill
was warned that if he continued to drink and drive, he risked being convicted
of murder. In closing argument to the jury, defense counsel argued, among
other things, that jurors should not find Woodfill guilty of murder because,
other than having consumed alcohol, there was no evidence that Woodfill was
driving in an unsafe manner. The jury returned a verdict of guilt, and the
trial court sentenced Woodfill to a prison term of 15 years to life.
II.
DISCUSSION
A. The Trial Court Did Not Err in Refusing Defense Counsel’s Proposed
Modifications to CALCRIM No. 520 on the Issue of Implied Malice
We first consider Woodfill’s contention that the trial court erred in
rejecting defense counsel’s proposed modification to CALCRIM No. 520,
which instructs on the elements for murder.
“A proper pinpoint instruction must be given at a defendant’s request.”
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 498.) “The court may,
however, ‘properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial evidence.’ ”
3
(People v. Hovarter (2008) 44 Cal.4th 983, 1021.) We apply the de novo
standard of review when determining whether the trial court erred in
refusing to give a requested pinpoint instruction. (People v. Johnson (2009)
180 Cal.App.4th 702, 707.)
Murder can be based on either express or implied malice. (§ 188,
subd. (a).) The People’s theory of murder was that Woodfill acted with
implied malice when he drove under the influence.
The standard version of CALCRIM No. 520, as given by the trial court
in this case, contains the following language regarding implied malice:
“The defendant had implied malice if:
“1. He intentionally committed the 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.
[¶] . . . [¶]
“An act causes death if the death is the direct, natural, and
probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence
is one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence
is natural and probable, consider all of the circumstances
established by the evidence.” (Italics omitted.)
4
Defense counsel requested that the trial court modify CALCRIM
No. 520 by replacing the second sentence of the final paragraph set forth
above, as follows:
“An act causes death if the death is the direct, natural, and
probable consequence of the act, and that death would not have
happened without the act. The defendant must have subjectively
known that the act was highly likely to result in death if nothing
unusual intervened. In deciding whether a consequence is
natural and probable, consider all of the circumstances
established by the evidence.”2 (Italics added.)
2 Defense counsel also requested that CALCRIM No. 520 be modified in
other respects, but Woodfill did not argue in his appellate briefing that the
trial court erred in rejecting those modifications. Indeed, Woodfill’s opening
appellate brief specifically states that his argument is based solely on the
trial court’s failure to instruct that “[t]he defendant must have subjectively
known that the act was highly likely to result in death if nothing unusual
intervened.” For the first time at oral argument, counsel for Woodfill referred
to other portions of defense counsel’s proposed jury instruction that did not
describe a defendant’s subjective knowledge. In particular, he cited defense
counsel’s request that the trial court instruct as follows: “If you find the
defendant was driving under the influence, you cannot find the defendant
guilty of murder unless you also find that the defendant committed an
additional act, which was so dangerous to human life that it was highly
probable to result in death”; and “The combination of driving a vehicle while
under the influence of an alcoholic beverage and violating a traffic law is
alone insufficient to establish an act that is highly likely to kill.” Counsel
contended at oral argument that the trial court erred in not instructing with
that language, either as proposed or after modifying it. The argument is
untimely because it was raised for the first time during oral argument.
(People v. Carrasco (2014) 59 Cal.4th 924, 990 [“ ‘Obvious reasons of fairness
militate against consideration of an issue raised initially’ at oral
argument.”].) We accordingly do not consider it. (Kinney v. Vaccari (1980)
27 Cal.3d 348, 356, fn. 6 [“An appellate court is not required to consider any
point made for the first time at oral argument, and it will be deemed
waived.”].)
5
The trial court rejected defense counsel’s requested modification,
explaining that the proposed instructions would confuse the jury.
Woodfill argues that the trial court erred in rejecting his proposed
modification because it was a correct statement of the law based on People v.
Watson (1981) 30 Cal.3d 290 (Watson), in which our Supreme Court first
established that, where implied malice is present, a defendant may be found
guilty of second degree murder upon facts which also would support a charge
of vehicular manslaughter. (Id. at pp. 298-299.) As we will explain,
Woodfill’s argument lacks merit because his requested modification is not an
accurate statement of the applicable law, and the trial court therefore
properly rejected it.
We begin our analysis by focusing on the discussion of implied malice
set forth in Watson, on which Woodfill premises his argument. In the course
of its discussion, Watson identified two alternative formulations for implied
malice. “We have said that second degree murder based on implied malice
has been committed when a person does ‘ “ ‘an act, the natural consequences
of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who
acts with conscious disregard for life’ ” . . . .’ [Citation.] Phrased in a
different way, malice may be implied when defendant does an act with a high
probability that it will result in death and does it with a base antisocial
motive and with a wanton disregard for human life.” (Watson, supra,
30 Cal.3d at p. 300, italics added.) The first formulation of implied malice set
forth in Watson is based on People v. Phillips (1966) 64 Cal.2d 574, 587, and
is often referred to as the Phillips test. (People v. Knoller (2007) 41 Cal.4th
139, 152 (Knoller).) The second formulation of implied malice set forth in
Watson is based on Justice Traynor’s concurring opinion in People v. Thomas
6
(1953) 41 Cal.2d 470, 480, and is often referred to as the Thomas test.
(Knoller, at p. 152.)
Since Watson was decided, our Supreme Court has repeatedly
explained that the Thomas test and the Phillips test are substantively the
same. (Knoller, at p. 152; People v. Nieto Benitez (1992) 4 Cal.4th 91, 104
(Nieto Benitez); People v. Dellinger (1989) 49 Cal.3d 1212, 1219-1222.) “[T]he
two linguistic formulations—‘an act, the natural consequences of which are
dangerous to life’ and ‘an act [committed] with a high probability that it will
result in death’ are equivalent and are intended to embody the same
standard.” (Nieto Benitez, at p. 111.) Indeed, in Nieto Benitez, our Supreme
Court specifically rejected the argument that the trial court had a sua sponte
duty to modify the form jury instruction on implied malice to include the
“high probability” language contained in the Thomas test. (Ibid.)
Woodfill argues that because Nieto Benitez limited its discussion to
whether a trial court has a sua sponte duty to instruct with the Thomas test,
our Supreme Court has not foreclosed the possibility that a trial court has a
duty to modify a form jury instruction, when requested by the defendant, to
reflect the Thomas test. Woodfill contends that because the Thomas test has
never been disapproved, it is still good law. He argues that the trial court
accordingly should have given his pinpoint instruction, which he
characterizes as substantively the same as the Thomas test. Specifically,
Woodfill equates the phrase “highly likely to result in death” in his proposed
modification with the phrase “high probability that it will result in death” in
the Thomas test. (Watson, supra, 30 Cal.3d at p. 300.)
We need not, and do not, decide whether a trial court might, under
appropriate circumstances, be required to instruct with the Thomas test if a
defendant requests it to do so. Here, defense counsel simply did not request
7
an accurate version of the Thomas test in the trial court. The Thomas test
describes the objective component of implied malice, describing the act itself
that the defendant commits. (Watson, supra, 30 Cal.3d at p. 300 [“malice
may be implied when defendant does an act with a high probability that it
will result in death” (italics added).] Here, however, defense counsel
requested an instruction describing the subjective component of implied
malice, namely that “[t]he defendant must have subjectively known that the
act was highly likely to result in death if nothing unusual intervened.” As we
will explain, that statement of the subjective component of implied malice
was expressly disapproved by our Supreme Court in Knoller, supra,41 Cal.4th 139.3
In Knoller, the trial court granted the defendant’s new trial motion
after analyzing the issue of implied malice using the Thomas test. (Knoller,
supra, 41 Cal.4th at p. 157.) In so doing, the trial court “stated that a killer
acts with implied malice when the killer ‘subjectively knows, based on
everything, that the conduct that he or she is about to engage in has a high
probability of death to another human being’ and thus the issue in this case
was ‘whether or not as a subjective matter and as a matter of law [the
defendant] knew that there was a high probability’ that her conduct would
result in someone’s death.” (Ibid.) Our Supreme Court explained that the
trial court’s analysis was flawed because “ ‘high probability of death’ is the
objective, not the subjective, component of the Thomas test, which asks
whether the defendant’s act or conduct ‘involves a high probability that it will
result in death.’ [Citation.] The subjective component of the Thomas test is
3 Because the parties’ original appellate briefing did not discuss the
significance of the fact that defense counsel’s proposed instructional language
concerned the subjective component of implied malice, we afforded the parties
an opportunity to provide supplemental briefing addressing that subject.
8
whether the defendant acted with ‘a base, antisocial motive and with wanton
disregard for human life.’ [Citation.] Nor does the Phillips test require a
defendant’s awareness that his or her conduct has a high probability of
causing death. Rather, it requires only that a defendant acted with a
‘conscious disregard for human life.’ ” (Ibid.) “[I]mplied malice requires a
defendant’s awareness of engaging in conduct that endangers the life of
another—no more, and no less.” (Id. at p. 143.) Therefore, “in treating the
objective component of the Thomas test as the subjective component of that
test, the trial court applied an erroneous definition of implied malice . . . .”
(Id. at p. 157.)
Woodfill’s proposed modification of CALCRIM No. 520 revealed
precisely the same flaw as the trial court’s analysis in Knoller. Woodfill
proposed an instruction stating that “[t]he defendant must have subjectively
known that the act was highly likely to result in death if nothing unusual
intervened.” However, “in treating the objective component of the Thomas
test as the subjective component of that test,” the proposed instruction
incorrectly stated the applicable legal standard. (Knoller, supra, 41 Cal.4th
at p. 157, italics added.) Accordingly, the trial court properly rejected defense
counsel’s proposed modification.
In his supplemental briefing, Woodfill argues, “[E]ven assuming the
high probability of death test of Thomas is incorrect with respect to the
subjective component of implied malice, it is correct with respect to the
objective component of implied malice. And because Knoller does not
undermine this conclusion, the trial court should have modified the requested
instruction to make it clear it applied to the objective component of implied
malice and should have given the instruction as so modified. This could have
been done by changing the requested instruction so it reads: ‘To constitute
9
implied malice the defendant’s act must have been highly likely to result in
death if nothing unusual intervened.’ ” At oral argument, counsel for
Woodfill again contended that the trial court had a sua sponte duty to
transform defense counsel’s proposed request for an instruction on the
defendant’s subjective knowledge to an instruction reflecting the Thomas
test’s objective component. We reject the argument. The trial court was not
required, sua sponte, to modify defense counsel’s proposed instruction to turn
it into an instruction on the Thomas test for the objective component of
implied malice. As Nieto Benitez establishes, because the Phillips test
correctly states the law, a trial court has no sua sponte duty to instruct using
the Thomas test when an instruction using the Phillips test is already being
given. (Nieto Benitez, supra, 4 Cal.4th at p. 111.)
B. The Trial Court Did Not Err in Failing to Sua Sponte Instruct With
Either Vehicular Manslaughter or Involuntary Manslaughter As a
Lesser Included Offense of Murder
Woodfill next argues that the trial court erred in not instructing the
jury on either vehicular manslaughter or involuntary manslaughter as a
lesser included offense of murder.
Although defense counsel did not argue in the trial court that the jury
should be instructed on any lesser included offenses, “[a] trial court has a sua
sponte duty to ‘instruct on a lesser offense necessarily included in the
charged offense if there is substantial evidence the defendant is guilty only of
the lesser.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 403-404 (Shockley).)
However, “a defendant has no unilateral right to an instruction on an
uncharged offense that is not necessarily included within a charged offense.”
(People v. Yeoman (2003) 31 Cal.4th 93, 129.)
“To determine if an offense is lesser and necessarily included in another
offense for this purpose, we apply either the elements test or the accusatory
10
pleading test. ‘Under the elements test, if the statutory elements of the
greater offense include all of the statutory elements of the lesser offense, the
latter is necessarily included in the former. Under the accusatory pleading
test, if the facts actually alleged in the accusatory pleading include all of the
elements of the lesser offense, the latter is necessarily included in the
former.’ ” (Shockley, supra, 58 Cal.4th at p. 404.) “When, as here, the
accusatory pleading incorporates the statutory definition of the charged
offense without referring to the particular facts, a reviewing court must rely
on the statutory elements to determine if there is a lesser included offense.”
(People v. Robinson (2016) 63 Cal.4th 200, 207.)4 “On appeal, we
independently review whether a trial court erroneously failed to instruct on a
lesser included offense.” (People v. Trujeque (2015) 61 Cal.4th 227, 271.)
1. Vehicular Manslaughter
Woodfill’s first contention is that the trial court should have instructed
on vehicular manslaughter (§§ 192, subd. (c), 191.5, subds. (a), (b)) as a lesser
included offense of murder.5 As Woodfill acknowledges, his argument is
4 The amended information tracks the statutory language and does not
provide any additional factual allegations about the alleged conduct, stating
that Woodfill “did unlawfully murder [S.G.], a human being, in violation of
Penal Code Section 187(a).” (Capitalization omitted.)
5 Section 191.5 sets forth two types of vehicular manslaughter while
intoxicated: (a) gross vehicular manslaughter while intoxicated, and
(b) vehicular manslaughter while intoxicated. “Gross vehicular
manslaughter while intoxicated is the unlawful killing of a human being
without malice aforethought, in the driving of a vehicle, where the driving
was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, 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
11
foreclosed by our Supreme Court’s opinion in People v. Sanchez (2001)
24 Cal.4th 983, 988-992 (Sanchez). Sanchez held that “gross vehicular
manslaughter while intoxicated should not be treated as a lesser included
offense of murder.” (Id. at p. 992.) Sanchez reached that conclusion because
gross vehicular manslaughter while intoxicated “requires proof of additional
elements that are not included in the offense of murder or in other forms of
nonvehicular manslaughter.” (Ibid.) Specifically, “[g]ross 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; see also People v. Hicks (2017) 4 Cal.5th 203, 209 & fn. 1 [citing
Sanchez for the proposition that a gross vehicular manslaughter conviction
was not a lesser included offense of murder because it “required proof of
elements that did not need to be proved to convict defendant of murder”].) As
case law has recognized, the reasoning of Sanchez applies equally to other
types of vehicular manslaughter (§§ 191.5, subd. (b), 192, subd. (c)), as they
all require proof of an element not required for murder, namely, the driving
unlawful manner, and with gross negligence.” (§ 191.5, subd. (a).) “Vehicular
manslaughter while intoxicated is the unlawful killing of a human being
without malice aforethought, in the driving of a vehicle, where the driving
was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and
the killing was either the proximate result of the commission of an unlawful
act, not amounting to a felony, but without gross negligence, or the proximate
result of the commission of a lawful act that might produce death, in an
unlawful manner, but without gross negligence.” (§ 191.5, subd. (b).)
Further, section 192, subdivision (c) sets forth three types of vehicular
manslaughter, not necessarily involving intoxication. In arguing that the
jury should have been instructed on vehicular manslaughter as a lesser
included offense, Woodfill does not distinguish between these different types
of vehicular manslaughter. Instead, he refers generally to “vehicular
manslaughter” as a lesser included offense.
12
of a vehicle. (People v. Bettasso (2020) 49 Cal.App.5th 1050, 1057-1060;
People v. Wolfe (2018) 20 Cal.App.5th 673, 685-686 (Wolfe).)
Woodfill acknowledges that we are bound to follow our Supreme Court’s
holding in Sanchez. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.) However, he asks us to “encourage the Supreme Court
to consider and address the issue” he raises, which consists of a policy
argument, including a focus on the history of the California statutes relating
to manslaughter and murder. Respecting our role as an intermediate
appellate court, we decline the invitation to comment any further. We find no
error in the trial court’s failure to instruct the jury on vehicular
manslaughter as a lesser included offense of murder.
2. Involuntary Manslaughter
Recognizing that we are precluded by Sanchez, supra, 24 Cal.4th 983,
from concluding that the trial court erred by not instructing on vehicular
manslaughter as a lesser included offense of murder, Woodfill’s second
contention is that the trial court should have instructed on involuntary
manslaughter as a lesser included offense. As we will explain, Woodfill’s
argument is precluded by the plain statutory language of section 192,
subdivision (b).
Involuntary manslaughter is a killing without malice “in the
commission of an unlawful act, not amounting to a felony; or in the
commission of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection.” (§ 192, subd. (b).) In
general, “[i]nvoluntary manslaughter is a lesser included offense of murder;
thus, a trial court must instruct the jury on involuntary manslaughter ‘[i]f
the evidence presents a material issue of whether a killing was committed
without malice, and if there is substantial evidence defendant committed
13
involuntary manslaughter.’ ” (People v. Munoz (2019) 31 Cal.App.5th 143,
153-154 (Munoz).) However, the Legislature expressly stated in section 192,
subdivision (b) that “[t]his subdivision shall not apply to acts committed in
the driving of a vehicle.” (§ 192, subd. (b).) Therefore, “section 192,
subdivision (b) effectively eliminates involuntary manslaughter as a lesser
included offense of murder when ‘committed in the driving of a vehicle.’ ”
(Munoz, at p. 154; see also People v. Ferguson (2011) 194 Cal.App.4th 1070,
1082 [“although involuntary manslaughter is usually a lesser included
offense of murder [citations], in the context of drunk driving it is not”].)
Woodfill acknowledges that section 192, subdivision (b) makes the
crime of involuntary manslaughter inapplicable to a vehicular killing.
However, he argues that when viewed from a “historical perspective,” which
includes the development of the statutory provisions that separately
criminalize vehicular manslaughter, the Legislature could not have intended
to enact a statute that would result in there being no lesser included offense
for a murder committed by the act of driving a vehicle. We understand
Woodfill’s argument, but it is better directed to the Legislature than to us.
The plain language of section 192, subdivision (b) excludes a killing
committed in the driving of a vehicle from the crime of involuntary
manslaughter. It is accordingly legally impossible for a defendant to be
convicted of involuntary manslaughter when charged with a murder
committed in driving a vehicle. If the Legislature were to determine that the
plain statutory language has the undesired effect of eliminating any lesser
included offense for murder committed in the driving of a vehicle, it is free to
enact a statutory amendment to address the issue.
Woodfill contends that we may “decline to follow the plain meaning of a
statute in situations when following the plain meaning inevitably . . . would
14
lead to absurd results that the Legislature did not intend.” (See People v.
Broussard (1993) 5 Cal.4th 1067, 1072 [“the plain meaning of a statute
should not be followed when to do so would lead to ‘absurd results.’ ”].) “To
justify departing from a literal reading of a clearly worded statute, the result
must be so unreasonable that the Legislature could not have intended it.”
(Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 638.) Here, it does not
lead to a necessarily absurd result to apply the plain meaning of section 192,
subdivision (b), even if the effect is to eliminate any lesser included offense
for murder committed in the driving of a vehicle. As one court observed in
the context of an equal protection challenge based on the absence of a lesser
included offense for murder committed by a vehicle, “the Legislature’s
charging scheme is rationally related to a legitimate governmental purpose:
to appropriately punish—and also perhaps to discourage—people from
engaging in the highly dangerous conduct of driving under the influence.”
(Wolfe, supra, 20 Cal.App.5th at p. 690; see also Munoz, supra,
31 Cal.App.5th at p. 160 [in the context of a due process challenge to the lack
of a lesser included offense, observing that “the Legislature reasonably could
distinguish unintentional homicides committed in the driving of a vehicle
from other unintentional homicides. Motor vehicles are a ‘leading cause of
accidental deaths’ in this country. [Citation.] Our Supreme Court expressly
has identified deterrence of driving under the influence of alcohol as ‘a highly
important governmental interest.’ ”].)
Accordingly, we follow the plain meaning of section 192, subdivision (b)
to conclude that the trial court was not required to instruct on involuntary
manslaughter as a lesser included offense of murder in this case. “A
defendant is entitled to an instruction on a lesser included offense only if the
record contains substantial evidence of the lesser crime.” (Wolfe, supra,
15
20 Cal.App.5th at p. 687.) Because there was no substantial evidence to
support a finding that the killing of S.G. was committed in any manner other
than the driving of a vehicle, Woodfill’s conduct could not constitute the crime
of involuntary manslaughter as a lesser included offense. (Id. at p. 686 [“As
far as the crime of involuntary manslaughter, the court was prohibited from
giving that instruction because the crime does ‘not apply to acts committed in
the driving of a vehicle.’ (§ 192, subd. (b).)”].)
C. The Trial Court Did Not Prejudicially Err in Admitting a Photograph of
S.G. While She Was Alive
Woodfill’s final contention is that the trial court prejudicially erred in
admitting a photograph of S.G. while she was alive.
In a motion in limine, defense counsel requested that the trial court
exclude from evidence any photographs depicting S.G. while alive.6 Defense
counsel offered to stipulate to any fact the prosecutor might wish to establish
using such a photograph. The People opposed the motion in limine, but they
offered to allow the defense to choose between three proposed photographs of
S.G.
The trial court ruled that it would admit one photograph of S.G. while
alive, stating that “one photograph is not unduly prejudicial. I’m not going to
exclude a photograph of a living individual who’s an alleged victim here of
6 Defense counsel’s motion in limine did not cite any specific provision of
the Evidence Code, but instead relied upon case law discussing the
circumstances in which it is appropriate to admit a photograph of a victim
while alive. That case law generally identifies issues of relevance (Evid.
Code, § 350 [no discretion to admit irrelevant evidence]) and undue prejudice
(Id., § 352 [discretion to exclude evidence when the probative value is
substantially outweighed by the probability of undue prejudice]) as arising
when the People seek to introduce a photograph of a victim while alive. (See,
e.g., People v. DeSantis (1992) 2 Cal.4th 1198, 1230 (DeSantis); People v.
Poggi (1988) 45 Cal.3d 306, 322-323 (Poggi).)
16
drunk driving.” The trial court explained, “I’ve done my fair share of murder
trials and I’ve done my fair share of allowing a picture of a living individual
who is the victim, because sometimes, and I’ll just give you my analysis, we
concentrate on your client throughout the whole two weeks and not enough to
alleged victim or victims. So I just feel that that would be probative even
though you’ve cited case law indicating otherwise.”
A single photograph of S.G. was displayed to the jury during the
testimony of S.G.’s husband, who was the first trial witness. After
establishing that S.G. left the house to go running at approximately 5:00 p.m.
to 5:15 p.m. on August 27, 2018, the prosecutor displayed a photograph of
S.G. and asked S.G.’s husband whether he recognized it. He confirmed, “Yes,
that’s my wife.”
We apply an abuse of discretion standard of review in determining
whether the trial court erred in admitting the photograph. (People v. Parker
(2022) 13 Cal.5th 1, 43.)
Due to the volume of death penalty appeals that come before our
Supreme Court, numerous opinions discuss the issue of whether it was error
for a trial court to allow the admission of a photograph of the victim while
alive. Our Supreme Court has “long advised trial courts to exercise care
when deciding whether to admit during the guilt phase of trial photographs
of a capital murder victim while alive, because of the risk such evidence ‘will
merely generate sympathy for the victim[ ].’ ” (People v. Brooks (2017)
3 Cal.5th 1, 56.) Since at least 1992, our Supreme Court has followed the
approach of cautioning trial courts to exercise care in admitting a photograph
of a victim while alive, but nevertheless holding that a photograph of the
victim while alive is “relevant to establish the witnesses’ ability to identify
the victims as the people about whom they were testifying” and that “[t]he
17
possibility that [the photograph] generated sympathy for the victims is not
enough, by itself, to compel its exclusion if it was otherwise relevant.”
(DeSantis, supra, 2 Cal.4th at p. 1230; see also People v. Tully (2012)
54 Cal.4th 952, 1020 (Tully) [quoting DeSantis]; People v. Thomas (2023)
14 Cal.5th 327, 371-372 [photographs of victims while alive “can be relevant
‘to establish the witnesses’ ability to identify the victims as the people about
whom they were testifying.’ ”].)
In assessing the relevance of victim photographs while alive, older case
law from our Supreme Court—on which Woodfill relies—takes into account
whether the defendant offered to stipulate to any facts that the People sought
to establish through the disputed photograph. (People v. Ramos (1982)
30 Cal.3d 553, 577-578 [error to admit a photograph of the victim while alive
during her father’s testimony when the defense offered to stipulate the victim
was a human being and was alive prior to the events of the night in
question]; Poggi, supra, 45 Cal.3d at pp. 322-323 [error to admit a photograph
of the victim while alive “for ‘identification’ ” when the defense offered to
stipulate to the fact that the victim was a human being, that she was alive
before the attack, and that she had died].) However, our Supreme Court’s
more recent case law has not followed that approach, concluding that
admission of a victim’s photograph is relevant to establish a witness’s ability
to identify the victim, even when the defense offers to stipulate to identity.
(Tully, supra, 54 Cal.4th at p. 1020 [even though defense counsel offered to
stipulate to identity, victim photograph was properly admitted to show
identity of victim]; DeSantis, supra, 2 Cal.4th at p. 1230 [same].)7
7 As the issue of the admissibility of a victim photograph typically
involves an objection made under Evidence Code section 352, our Supreme
Court’s case law considering the admissibility of victim photographs while
18
Citing our Supreme Court’s case law, Woodfill acknowledges that a
photograph of a victim while alive may be relevant to show that the witness
can identify the victim as the person about whom the witness is testifying.
However, he argues the photograph of S.G. was not relevant for that purpose
because “[t]he prosecutor made no showing that [S.G.’s husband] needed to
see the photograph in order to be able to be made aware of who his wife was.”
Accordingly, Woodfill argues “[t]here was no need to use [the photograph] to
allow [S.G.’s] husband to identify his wife.” Woodfill argues that because the
photograph was not relevant, the trial court erred in admitting it.8
In our assessment, the relevance of the photograph is a close question.
The People’s only argument concerning the relevance of the photograph is
that it was admitted “so that [S.G.’s] husband could identify her for the jury.”
However, that is not the correct inquiry under the case law. As our Supreme
Court has explained, victim photographs are “relevant to establish the
alive typically addresses the issue of whether the photograph was unduly
prejudicial after discussing whether the photograph was relevant. (See, e.g.,
People v. Suff (2014) 58 Cal.4th 1013, 1072-1073.) Here, however, Woodfill
focuses his argument only on the issue of relevance, arguing that the
photograph should have been excluded because it had no relevance
whatsoever, regardless of whether it was more prejudicial than any typical
photograph of a victim while alive. We note that there is nothing unduly
prejudicial about the photograph, as it is an ordinary photograph that
appears to have been taken as a “selfie” with a cell phone camera, depicting
the face and upper body of a woman with a neutral expression.
8 In arguing that the photograph was not relevant, Woodfill also points
out that he offered to stipulate to any fact that the People sought to establish
through the admission of the photograph. However, as we have explained, a
defendant’s stipulation along those lines is no longer treated as dispositive on
the issue of whether the admission of a photograph is relevant to prove a
witness can identify the victim as the person who is the subject of the
witness’s testimony. (Tully, supra, 54 Cal.4th at p. 1020; DeSantis, supra,2 Cal.4th at p. 1230.)
19
witnesses’ ability to identify the victims as the people about whom they were
testifying.” (DeSantis, supra, 2 Cal.4th at p. 1230.) The inquiry is not
whether the photograph is relevant so that a witness can identify the victim
“for the jury.” Here, there is no dispute that S.G. was the person to whom
S.G.’s husband was married, and that S.G. was the person who left their
house for a run and did not come back. Showing S.G.’s husband a photograph
of S.G. to identify her was not material to confirm those facts, and thus the
photograph was not relevant “to establish the witness[’s] ability to identify
the victim[ ] as the [person] about whom [he was] testifying.” (Ibid.)
However, even were we to conclude that the trial court erred in
determining that the photograph was relevant, Woodfill has not met his
burden to establish that any error in admitting the photograph was
prejudicial. In determining whether an error in admitting a photograph of a
victim while alive requires that the judgment be reversed, we inquire
whether it is “reasonably probable that the outcome would have been more
favorable to defendant had the photograph been excluded.” (DeSantis, supra,
2 Cal.4th at p. 1231.)
Here, the photograph is a plain and unremarkable photograph
depicting S.G. while she was alive. As such, the photograph was unlikely to
generate any additional sympathy from the jury above and beyond the tragic
fact of S.G.’s death and the presence of S.G.’s grieving husband on the
witness stand. (See People v. Cowan (2010) 50 Cal.4th 401, 477 [concluding
that the admission of a photograph showing one of the victims while alive
was not prejudicial because “the photograph would have generated no more
sympathy for the victims than did [the victims’] children and grandchildren
testifying live from the witness stand”]; People v. Thompson (1988) 45 Cal.3d
86, 115 [a photograph which was “simply a picture of the victim alive” “did
20
not unduly prejudice the defendant in any way”]; People v. Hovey (1988)
44 Cal.3d 543, 571 [the victim’s “photo, though perhaps ‘charming,’ was
nonetheless an ‘ordinary’ one not likely to produce a prejudicial impact”];
Poggi, supra, 45 Cal.3d at p. 323 [a photograph of the victim while alive did
not “seem likely to have appreciably intensified whatever feelings—whether
of hostility toward defendant or sympathy toward his victim—that the jury
may have developed in this case.”].) Moreover, the jury was shown images of
S.G.’s body at the scene of the accident and during the autopsy. Woodfill does
not challenge the admission of those photographs on appeal. It is unlikely
that the ordinary photograph of S.G. while alive could have appreciably
added to the emotional impact on the jury of the graphic photographs
depicting the injuries that Woodfill caused S.G. to suffer. For these reasons,
it is not reasonably probable that Woodfill would have obtained a more
favorable result had the trial court granted his request to exclude the
photograph of S.G. while alive.
Accordingly, we conclude that the trial court did not prejudicially err in
admitting a photograph of S.G. while she was alive.
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DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
22