People v. Ostertag CA2/6
B297690
| Cal. Ct. App. | Sep 22, 2021Background
- Defendant Tyler Ostertag stabbed Daniel M. in a restaurant parking lot after a fight; the wound punctured the heart and Daniel M. died. Onlookers filmed the incident; the knife and blood matched the victim’s DNA.
- Ostertag fled, instructed an acquaintance to lie to police, threatened a witness (Joseph H.), tried to dispose of the knife, and took steps to evade detection (turning off his phone).
- Trial evidence included testimony about Ostertag’s longtime mental health problems and experts who diagnosed bipolar disorder, oppositional defiant disorder, cannabis abuse, impulsivity, and deficits in planning/decision making.
- A jury convicted Ostertag of second degree murder and dissuading a witness; the jury found he personally used a deadly weapon. The trial court found two prior serious-felony strikes and two prior prison terms; Ostertag was sentenced to 70 years to life plus a two-year determinate term, given 1,347 days’ presentence credit, and the court orally stayed fines for inability to pay.
- On appeal Ostertag challenged the trial court’s handling of alleged juror misconduct, refusal to instruct on involuntary manslaughter, failure to allow mental-impairment evidence to inform consciousness-of-guilt inferences, and several sentencing/abstract errors. The appellate court affirmed the convictions but ordered limited sentencing modifications.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ostertag) | Held |
|---|---|---|---|
| Whether the court erred by not further investigating alleged juror misconduct | Trial court acted within discretion; no showing of prejudice | Juror remark in hallway reflected prejudice and required further inquiry/interview | No reversible error; court acted within discretion and no substantial likelihood of bias |
| Whether court should have instructed on involuntary manslaughter (criminal negligence theory) | Evidence supported implied malice; no instruction required | Mental impairment/impulsivity could negate implied malice and warrant lesser instruction | Denial proper; evidence did not permit reasonable doubt on implied malice |
| Whether jury should have been told mental impairment could bear on consciousness-of-guilt inferences | CALCRIM instructions were adequate; Defendant did not seek a modified instruction | Mental impairment could negate probative value of post-offense behavior and required modified instruction | Any instructional omission harmless; post-offense evasive acts supported consciousness-of-guilt inferences |
| Sentencing and abstract of judgment errors (prior prison-term enhancement, custody credit, fines/fees stayed) | AG concedes some errors; abstract must match oral ruling | One-year prior-prison enhancement barred by 2020 amendment; additional one day custody credit; abstract must reflect stayed fines/fees | Modified: strike one-year §667.5(b) term, award one additional day credit (total 1,348), and stay fines/fees on abstract; otherwise affirm |
Key Cases Cited
- People v. Hem, 31 Cal.App.5th 218 (Cal. Ct. App. 2019) (trial court discretion governs inquiry into juror hallway conversations)
- People v. Fuiava, 53 Cal.4th 622 (Cal. 2012) (trial court must inquire reasonably into possible juror misconduct)
- People v. Johnsen, 10 Cal.5th 1116 (Cal. 2021) (extent of juror-misconduct inquiry is within court’s discretion)
- People v. Brothers, 236 Cal.App.4th 24 (Cal. Ct. App. 2015) (involuntary manslaughter instruction required when jury could reasonably doubt implied malice during an inherently dangerous assaultive felony)
- People v. Elmore, 59 Cal.4th 121 (Cal. 2014) (definition and proof of implied malice)
- People v. Souza, 54 Cal.4th 90 (Cal. 2012) (trial court must instruct on general principles relevant to the evidence)
- People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (standard for giving lesser-included offense instructions)
- People v. Cole, 33 Cal.4th 1158 (Cal. 2004) (de novo review of whether evidence supports lesser-offense instruction)
- People v. McGehee, 246 Cal.App.4th 1190 (Cal. Ct. App. 2016) (mental impairment may render false statements nonprobative of consciousness of guilt)
- People v. Wiidanen, 201 Cal.App.4th 526 (Cal. Ct. App. 2011) (similar principle on intoxication/mental impairment and consciousness-of-guilt instructions)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (ability-to-pay analysis for fines and fees)