FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2015, Alvarez got behind the wheel of his Nissan sedan after consuming alcohol, cocaine, and marijuana. As he drove through Corona on a clear night, witnesses saw him weave in and out of traffic, pass cars at unsafe speeds, and use the shoulder to run a red light. Continuing eastbound on 6th Street toward the intersection at Promenade Avenue, Alvarez approached another red light. He swerved into the right turn lane to avoid cars stopped at the light and barreled into the intersection at 83 to 100 miles per hour (m.p.h.).
At that very moment, Jacob G. driving a Mazda sedan was turning left from Promenade Avenue onto eastbound 6th Street. He had a green light. Alvarez broadsided the Mazda with enough force to push its passenger side frame inwards three feet and cause Jacob's car to continue traveling 100 feet. The impact killed the Mazda's passenger, Courtney F., and injured Jacob.
Corona police officers recovered an unopened package of unisex synthetic urine from the console of Alvarez's Nissan. Evidence at trial indicated that Alvarez worked as a medical equipment delivery driver and had to randomly submit to a urine drug test pursuant to federal regulations. He had received job training on the effects of impaired driving, and his company had a zero-tolerance policy for driving while impaired.
At trial, Alvarez's main defense was that the collision was a "horrible accident" but not murder because he did not act with implied malice. He urged the jury to convict on counts 2 through 4 and return a true finding on the great bodily injury enhancement, but acquit him of murder.
Instead, the jury convicted Alvarez as charged and found all the allegations true. At sentencing, the court selected count 2 as the principal count and imposed the middle term of two years. It imposed an indeterminate term of 15 years to life on count 1, to run consecutively, and stayed the sentences for counts 3 and 4 and the enhancements pursuant to section 654.
DISCUSSION
Alvarez raises three main challenges to his murder conviction: sufficiency of the evidence as to implied malice, instructional error, and prosecutorial misconduct during closing arguments. We address these contentions in turn before dealing with his remaining claim of cumulative error.
1. Sufficiency of the Evidence
2. Instructional Error
Defense counsel requested jury instructions on involuntary manslaughter, gross vehicular manslaughter while intoxicated, and simple vehicular manslaughter while intoxicated as lesser included offenses of murder on count 1. The prosecution objected, and the trial court denied the request. During
"[E]ven absent a request, and even over the parties' objections, the trial court must 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. Birks (1998)
There are two tests for determining whether an uncharged crime is a lesser included offense. "Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense." ( People v. Parson (2008)
Alvarez concedes gross vehicular manslaughter while intoxicated is not a lesser included offense of murder under the statutory elements test, as it requires additional elements (use of a vehicle and intoxication) not required for murder. ( People v. Sanchez (2001)
The amended information tracked the language of section 187, subdivision (a) in alleging Alvarez "did willfully and unlawfully murder Courtney F., a human being." "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." ( Robinson , supra ,
The People argue Ortega was wrongly decided or inapplicable where the alleged lesser included offense requires a different mens rea. Because we agree on the broader first point, we decline to follow Ortega .
"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." ( People v. Montoya (2004)
Two recent reported decisions have relied on Montoya to reject Ortega 's"expanded" accusatory pleading test.
Squarely on point is the case that followed Macias : Munoz , supra ,
The People urge us to follow Macias and Munoz while Alvarez maintains that Ortega provides the correct rule. We think the People have the better argument.
Alvarez attempts to distinguish Montoya as a multiple conviction case, i.e., where a defendant is charged with and convicted of both the greater and lesser offenses. He argues that an "expanded" accusatory pleading test is more appropriate "in an uncharged lesser conviction case like this one." We do not read Montoya so narrowly. The court articulated the general standard for the accusatory pleading test before considering its application in a multiple conviction case. ( Montoya , supra , 33 Cal.4th at pp. 1035-1036,
Although we could simply rely on Munoz , there is also a conceptual problem with Ortega . In Birks , supra ,
Critically, " Birks makes clear that the goal of enabling a jury to return the most accurate verdict that the evidence supports does not require that every possible crime a defendant may have committed be presented to the jury as an alternative . Rather, a jury need only be instructed on offenses that the prosecution actually charged either explicitly or implicitly (because they were necessarily included within explicitly charged offenses)." ( People v. Hicks (2017)
Ortega focuses on language in Birks that sua sponte instruction on lesser included offenses "prevents either party whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other." ( Ortega , supra ,
"Where the evidence warrants, the rule ensures that the jury will be exposed to the full range of verdict options which, by operation of law and with full notice to both parties, are presented in the accusatory pleading itself and are thus closely and openly connected to the case." ( Birks , supra ,19 Cal.4th at p. 119 ,, 77 Cal.Rptr.2d 848 .) 960 P.2d 1073
The rule as to lesser included offenses " 'encourages a verdict, within the charge chosen by the prosecution , that is neither "harsher [n]or more lenient than the evidence merits." ' " ( Hicks , supra ,
Alvarez sees no problem with this outcome in cases like his where the district attorney initially charged and provided sufficient evidence of both charges at the preliminary hearing. Only later did the prosecutor opt to amend the information and charge Alvarez solely with Watson murder. But we see no principled way to carve out such cases from Birks . (See Birks , supra ,
Focusing on the amended information alone ( Macias , supra ,
3.-4.
The judgment is affirmed.
WE CONCUR:
NARES, Acting P. J.
GUERRERO, J.
Notes
Further statutory references are to the Penal Code unless otherwise indicated.
The Supreme Court validated this theory of implied malice murder in People v. Watson (1981)
See footnote *, ante .
We asked the parties to submit supplemental letter briefs addressing People v. Macias (2018)
The Supreme Court later held that courts may consider "only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (People v. Reed (2006)
See footnote *, ante .