People v. MunozPeople v. Munoz
Stephen Temko, 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, Kenneth C. Byrne and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
On appeal, Munoz raises numerous challenges to the trial court‘s refusal to instruct the jury on any lesser included offenses to murder. He argues that evidence adduced at the preliminary hearing supplied the necessary elements to deem gross vehicular manslaughter while intoxicated a lesser included offense of murder, even if those elements were absent from the accusatory pleading itself. He argues that the express exclusion of vehicular homicides from the involuntary manslaughter statute violates his constitutional rights to due process and equal protection of the laws. Finally, he argues that the prosecution was fundamentally unfair to structure the accusatory pleading to deny him instructions on lesser included offenses.
In addition to his claims regarding lesser included offenses, Munoz contends that the trial court erred by not allowing him to contact a juror who wrote two letters to the trial court discussing the verdict after the trial ended. Munoz also argues the trial court unduly prejudiced him by admitting a photograph of Munoz smiling during his arrest for the charged crime.
We conclude that binding Supreme Court authority forecloses Munoz‘s instructional challenges, that the trial court acted within its discretion in denying Munoz access to the juror‘s contact information, and that Munoz has failed to show that
FACTUAL BACKGROUND
We limit our summary of the evidence elicited at trial to those facts relevant to the issues on appeal.
A. Munoz‘s prior conviction for driving under the influence of alcohol
In 2012, Munoz was convicted of driving under the influence of alcohol. As part of Munoz‘s guilty plea, the prosecution provided in writing a Watson1 advisement stating that “it is extremely dangerous to human life to drive while under the influence of alcohol,” and that if Munoz “continue[d] to drive while under the influence of alcohol . . . and as a result of [his] driving someone is killed, [he could] be charged with murder.”
As a result of the conviction, Munoz attended a first offenders alcohol program. Among other things, the program taught him to avoid driving if he drank. He also attended a victim impact panel class provided by Mothers Against Drunk Driving (MADD), which discussed the dangers of drinking and driving and the Watson advisement.
At trial, Munoz acknowledged on cross-examination that he had always known to some extent that driving while intoxicated was dangerous, and he understood this to a greater extent after participating in the alcohol program. He also acknowledged that he was aware from his prior conviction and the MADD class that he could be charged for murder if he killed someone while driving while intoxicated.
In June 2014, Munoz went on a camping trip with his extended family. One evening, beginning at about 7:00, he drank at least three 22-ounce craft beers and some fireball whiskey. He was planning to sleep at the campsite that night and not drive.
Later that evening, Munoz‘s stepsister‘s husband insulted Munoz‘s mother when she encouraged him to go to bed. Munoz and his stepsister‘s husband began arguing, shouting angrily at one another. Munoz put his dog in his truck and drove away.
Witnesses saw Munoz driving down the freeway at a high rate of speed, zigzagging as he changed lanes. Other cars changed lanes to move out of his way.
Michael Mahan was driving his truck further down the freeway at approximately 65 miles per hour. Gevork Krpikyan was in the passenger seat. Mahan looked in his rearview mirror and saw Munoz‘s truck approaching. He yelled to Krpikyan to ” ‘hold on’ ” and attempted to speed up. Munoz‘s truck collided with the rear of Mahan‘s truck. Mahan‘s truck hit the embankment and rolled over at least three times. Krpikyan was ejected from the truck onto the freeway, and another vehicle ran over him. Krpikyan died from multiple traumatic injuries. Mahan suffered injuries to his head and back, and it took him “a couple months” to be able to walk again.
Evidence from Munoz‘s truck‘s event data recording system indicated Munoz was traveling at 98 miles per hour five seconds before the collision and 93 miles per hour one second before the collision. Munoz had not applied the brakes immediately before the crash.
Minutes after the collision a witness saw Munoz and his dog sitting outside of Munoz‘s truck a few hundred feet away from the collision site. Munoz‘s windshield was completely shattered. Munoz asked the witness, ” ‘What happened to the shit I hit?’ ” Munoz “was frazzled and slurring his speech” and the witness believed he was drunk. Munoz put his dog into the truck and drove off towards the nearest freeway exit.
California Highway Patrol (CHP) officers detained Munoz on a side street shortly thereafter. An officer testified that Munoz‘s breath smelled of alcohol, his eyes were “glossy,” and he was “swaying” and “unsteady on his feet.” Munoz failed a battery of field sobriety tests. Two preliminary alcohol screening tests taken minutes apart measured Munoz‘s blood alcohol level at .201 percent and .202 percent. A chemical test performed at a sheriff‘s station approximately half an hour later measured Munoz‘s blood alcohol level at .19 percent.
CHP impounded and searched Munoz‘s truck, finding a portable breathalyzer in the center console.
D. Defense expert testimony
An expert witness for the defense testified regarding “fight or flight syndrome,” explaining that when humans experience high stress, fear, or anger, their brains’ ability “to process information and to make decisions . . . is greatly compromised.” The witness testified that threats could trigger this response. He also explained that sleep deprivation affects cognitive processes, memory, and judgment.
An information charged Munoz with murder (
Munoz requested jury instructions on involuntary manslaughter and gross vehicular manslaughter while intoxicated. The trial court denied both requests.
The jury found Munoz guilty of second degree murder. The trial court sentenced him to 15 years to life, awarded credits, and imposed fines and fees.
Munoz timely appealed.
DISCUSSION
A. Munoz Was Not Entitled To An Instruction On Gross Vehicular Manslaughter While Intoxicated As A Lesser Included Offense Of Murder
Munoz argues that because he was charged with murder on the theory that he committed a homicide while driving under the influence of alcohol, he was entitled to an instruction on gross vehicular manslaughter while intoxicated as a lesser included offense. We disagree.
1. Applicable law
a. Murder and manslaughter
“Murder is the unlawful killing of a human being . . . with malice aforethought.” (
Under certain circumstances, malice may be implied when a defendant kills someone while willfully driving under the influence of alcohol, thus subjecting the defendant to a charge of murder. (See People v. Wolfe (2018) 20 Cal.App.5th 673, 681 (Wolfe)). This is “colloquially known as a Watson murder” after Watson, supra, 30 Cal.3d 290. (Wolfe, supra, 20 Cal.App.5th at p. 677.) Among other things, conviction on this basis requires a showing that the defendant had a subjective, actual awareness of the risk presented by his or her conduct. (Watson, at pp. 296-297.) Opinions affirming convictions under this principle have relied on a number of factors present in Watson, including ” ‘(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.’ ” (Wolfe, at pp. 682-683.) “However, ‘nowhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder.’ ” (Wolfe, at p. 683.)
Involuntary manslaughter “is the unlawful killing of a human being without malice,” occurring “in the commission of an
The Penal Code states expressly that involuntary manslaughter does “not apply to acts committed in the driving of a vehicle.” (
The Penal Code also defines vehicular manslaughter while intoxicated. (
b. Lesser included offenses
“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.” (Wolfe, supra, 20 Cal.App.5th at p. 684, citing People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Courts have “applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory 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.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228 (Reed).)
Involuntary 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 involuntary manslaughter.” (People v. Cook (2006) 39 Cal.4th 566, 596.)
If a defendant is charged with murder caused by driving a vehicle while intoxicated, however, a trial court cannot give an involuntary manslaughter instruction, because the alleged killing was an “act[ ] committed in the driving of a vehicle” exempt from
Our Supreme Court has held that gross vehicular manslaughter while intoxicated also is not a lesser included offense of murder under the statutory elements test. (People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez).) In Sanchez, the defendant killed someone in a motor vehicle accident while intoxicated, and a jury convicted him of both murder and gross vehicular manslaughter while intoxicated. (Id. at pp. 985-986.) On appeal, the court addressed whether the manslaughter charge was a lesser included offense of murder, in which case the defendant could not be convicted of both. (See id. at p. 987 [“A defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act“].) The court upheld the dual convictions. (Id. at p. 988.) It reasoned that “the statutory elements of murder do not include all the elements” of gross vehicular manslaughter while intoxicated, because the latter “requires proof that the homicide was committed ‘in the driving of a vehicle’ and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated.” (Id. at p. 989.) Thus, “[a]lthough as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxicated.” (Id. at p. 988.)
2. Analysis
Munoz argues that Sanchez only applied the statutory elements test, not the accusatory pleading test, and that under this latter test the trial court should have deemed gross vehicular manslaughter while intoxicated a lesser included offense of murder and instructed the jury accordingly. Munoz‘s characterization of the holding of Sanchez is correct; the Supreme Court mentioned both the elements test and the accusatory pleading test but conducted its analysis solely by comparing “the statutory elements of the crimes involved,” with no reference to the accusatory pleading. (Sanchez, supra, 24 Cal.4th at p. 988; see also Reed, supra, 38 Cal.4th at p. 1228 [accusatory pleading test unnecessary to holding of Sanchez].)
The accusatory pleading in this case is of no aid to Munoz. The pleading stated, in relevant part, “On or about June 28, 2014, in the County of Los Angeles, the crime of MURDER, in violation of PENAL CODE SECTION 187(a), a Felony, was committed by RYAN MUNOZ, who did unlawfully, and with malice aforethought murder GEVORK KRPIKYAN, a human being.” Munoz does not dispute that this does little more than repeat the statutory definition of murder from the Penal Code, and does not supply the additional elements that would
Munoz argues that “[a]lthough the prosecution declined to include the allegation of drunk driving in the Information,” the prosecution in effect charged him with driving under the influence of alcohol “as the predicate act for implied malice murder” under Watson. He cites to the transcript of the preliminary hearing, in which the trial court found probable cause to charge Munoz with implied malice murder based on the fact that Munoz had driven while intoxicated despite having been convicted of doing so earlier and attending classes that taught him the dangers of such conduct. Munoz notes also that the trial court, when instructing the jury on the elements of murder, stated that “[t]he act or acts the prosecution is relying on to prove implied malice aforethought for murder is the driving a motor vehicle while under the influence of alcohol in violation of [Vehicle Code section 23152, subdivisions (a) and (b)],” and provided instructions for those two Vehicle Code offenses as well.
We do not disagree that, based on the preliminary hearing and jury instructions, the prosecution could not secure a murder conviction under the circumstances of this case without proving beyond a reasonable doubt that Munoz drove while intoxicated. The Supreme Court has indicated repeatedly, however, that when applying the accusatory pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual pleading and its allegations regarding the purported greater offense. (See, e.g.,
Indeed, in cases such as this one in which “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, emphasis added; see also People v. Shockley (2013) 58 Cal.4th 400, 404 [“because the information . . . simply tracked [the statutory] language without providing additional factual allegations, we focus on the elements test“].)
The Supreme Court has explained the importance of limiting analysis of lesser included offenses to the statutory elements and language of the accusatory pleading to “promote[ ] consistency in application” and “ease[ ] the burden on both the trial courts and the reviewing courts.” (People v. Ortega (Ernesto) (1998) 19 Cal.4th 686, 698 (Ortega (Ernesto)).) In Ortega
Munoz claims we properly may consider evidence from the preliminary hearing under an “expanded” accusatory pleading test as articulated in People v. Ortega (Andrew) (2015) 240 Cal.App.4th 956, 967 (Ortega (Andrew)), a case decided by the Sixth District Court of Appeal. In Ortega (Andrew), the accusatory pleading charged the defendant with
The court concluded, however, that sexual battery was a lesser included offense under an “expanded accusatory pleading test” that looked not just to the pleading itself, but to the “evidence adduced at the preliminary hearing” as well, which established the defendant had penetrated the victim with his fingers. (Ortega (Andrew), supra, 240 Cal.App.4th at p. 967.) The court reasoned that under the current pleading standard, the accusatory pleading need state nothing more than the statutory language; because this was insufficient to apprise the defendant fully of the details of the charges against him, however, due process required that the defendant also receive the transcript from the preliminary hearing. (Id. at p. 969Ibid.) Given that “the prosecutor was bound by the preliminary hearing testimony to prove that defendant digitally penetrated [the victim‘s] vagina,” “felony sexual battery was necessarily a lesser included offense of forcible sexual penetration, and it would be unjust to allow the prosecutor, by controlling the language in the charging document, to also control whether the jury considers that lesser offense.” (Id. at p. 970.)
We respectfully decline to follow Ortega (Andrew), which did not discuss Ortega (Ernesto) or Montoya and their disapproval of the analysis in Rush, a case in which the Court of Appeal considered the preliminary hearing evidence just as Ortega (Andrew) advocated. Ortega (Andrew) also did not discuss the many Supreme Court cases cited above, stating that the accusatory pleading test looks solely to the language of the pleading itself. (See, e.g., Banks, supra, 59 Cal.4th at p. 1160.) Nor did Ortega (Andrew) account for the practical concerns raised in Ortega (Ernesto) that an expanded accusatory pleading test would lead to inconsistent application and additional burden on the courts. (See Ortega (Ernesto), supra, 19 Cal.4th at p. 698.) The only reported case citing Ortega (Andrew) declined to adopt the expanded accusatory pleading test, concluding, as do we, that it was contrary to Montoya and other Supreme Court authority. (See People v. Macias (2018) 26 Cal.App.5th 957, 964.)
Munoz argues, in line with Ortega (Andrew), that if the preliminary hearing transcript is not considered part of the accusatory pleading, then he did not receive adequate notice of the charges against him, in violation of his due process rights. He also argues that because an information properly can include nothing more than the statutory language of the charged offenses, the accusatory pleading test “is eliminated as a separate test” unless courts consider the additional allegations from the preliminary hearing. Whatever the merit of these arguments, on which we express no opinion, we are bound by Supreme Court
Munoz argues we are not bound by the holding of Montoya because it applied the accusatory pleading test to determine the propriety of multiple convictions (Montoya, supra, 33 Cal.4th at pp. 1035-1036), an application later rejected in Reed, supra, 38 Cal.4th at p. 1229.6 Montoya states, however, that its rule that courts should consider only the accusatory pleading for the greater offense is “[c]onsistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense.” (Montoya, at p. 1036.) Thus, Montoya intended its rule not only to apply in the context of multiple convictions, but also in the context of determining whether instructions on a lesser offense were warranted. Here, we invoke it for the latter purpose.
B. Due Process Did Not Require The Trial Court To Instruct On Involuntary Manslaughter
Munoz argues that the statutory scheme eliminating involuntary manslaughter as a lesser included offense of an implied malice murder when committed by an intoxicated driver violates his right to due process under the
1. Munoz did not have a fundamental right to an involuntary manslaughter instruction
” ’ “Unless application of a statute impinges upon ‘fundamental rights,’ ” ’ ” it survives a substantive due process challenge so long as ” ’ “the application is procedurally fair and reasonably related to a proper legislative goal.” ’ ” (Barnes v. Superior Court (2002) 96 Cal.App.4th 631, 641, fn. 7 (Barnes).) A right is “fundamental” if it is ” ’ “deeply rooted in this Nation‘s history and tradition,” . . . and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [it was] sacrificed.” ’ ” (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 142 (Jimenez).)
Munoz contends that “the right to an instruction on a lesser include[d] offense is fundamental, for due process purposes, because it impacts a criminal defendant‘s right to have [a] jury determine all material issues in the case.” Munoz claims that by eliminating involuntary manslaughter as a lesser included offense of murder committed in the driving of a vehicle, the law did not allow the jury to consider the full range of options for conviction, thus leaving the jury with “an all-or-nothing choice” between murder and acquittal. He claims that “the law encouraged the jury to find [him] guilty of murder so that he would not get away totally free.”
Munoz quotes People v. Barton (1995) 12 Cal.4th 186 (Barton), in which our Supreme Court addressed the trial court‘s obligation to instruct on lesser included offenses. The court explained that, because “[t]ruth may lie” somewhere between the defendant‘s claim of innocence and the prosecution‘s assertion of
We disagree that the principles articulated in Barton constitute fundamental rights for purposes of due process analysis. It is true a defendant has the right to instructions on lesser included offenses under California law, and that the right has been tied to the state constitutional right ” ‘to have the jury determine every material issue presented by the evidence.’ ” (Breverman, supra, 19 Cal.4th at p. 153.) Breverman held, however, that the right to instructions on lesser included offenses “arises from California law alone” (id. at p. 149), and noted “the United States Supreme Court has expressly refrained from recognizing a federal constitutional right to instructions on lesser included offenses in noncapital cases” (id. at p. 165).
On this basis, the Fourth District Court of Appeal recently held that an intoxicated driver charged with murder had “no fundamental constitutional right to have the jury instructed as to a manslaughter charge” even if it were a lesser included offense. (Wolfe, supra, 20 Cal.App.5th at p. 688.) We similarly decline to consider the right to instructions on lesser included offenses ” ’ “implicit in the concept of ordered liberty” ’ ” (Jimenez, supra,
2. The vehicular manslaughter statutes are reasonably related to a proper legislative goal
Because the law at issue here does not implicate a fundamental right, we consider whether ” ’ “the application is procedurally fair and reasonably related to a proper legislative goal.” ’ ” (Barnes, supra, 96 Cal.App.4th at p. 641, fn. 7.) Under this analysis, “[t]he enactment should not be unreasonable, arbitrary, or capricious. [Citation.] The wisdom of the legislation, however, is not at issue, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.” (People v. Superior Court (Johnson) (2004) 120 Cal.App.4th 950, 958 (Johnson).)
Here, 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. (Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. (1983) 463 U.S. 29, 33.) Our Supreme Court expressly has identified deterrence of driving under the influence of alcohol as “a highly important governmental interest.” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1338.)
Munoz argues the exclusion of vehicular homicides from the involuntary manslaughter statutory provision is arbitrary and capricious. He states that he “recognizes that an automobile can wreak serious havoc and that car accidents are a major cause of death in this [country], but that should not justify denying a criminal defendant the opportunity to be convicted of a lesser included offense, particularly when the lesser crime is more commensurate with his guilt.” He points out that the Legislature has not precluded instructions on voluntary manslaughter for vehicular homicides, and argues it is illogical to permit voluntary manslaughter as a lesser included offense but not involuntary manslaughter.
Munoz‘s arguments suggest that the Legislature‘s intention in creating the separate vehicular manslaughter statutes was to
We, however, need not decide that question. As we have explained, there is another valid rationale for creating the separate vehicular manslaughter statutes, namely to create a wider range of penalties for an all-too-common form of homicide. The fact that, as a consequence of this statutory scheme, courts no longer must instruct on either involuntary or vehicular manslaughter as a lesser included offense of a Watson murder does not render the scheme invalid. In the absence of infringement on a fundamental right, the Legislature may address a problem as it sees fit despite the “availability of less drastic remedial alternatives.” (Johnson, supra, 120 Cal.App.4th at p. 958.)
C. The Trial Court Did Not Violate Munoz‘s Right To Equal Protection Under The Laws By Refusing To Instruct On Involuntary Manslaughter
Munoz argues that excluding vehicular homicides from the involuntary manslaughter statute violates his right to equal protection under the laws. He asserts there is “no adequate justification” to treat him differently from others who commit implied malice murder with some instrumentality other than a vehicle, and therefore have involuntary manslaughter available as a lesser included offense if supported by the evidence. The analysis of this challenge is not materially different from the analysis of Munoz‘s due process challenge, and we similarly hold Munoz has failed to show a constitutional violation.
We will assume for the sake of argument that defendants charged with Watson murder are similarly situated to defendants charged with other forms of implied malice murder, and that the law treats them differently. Munoz‘s equal protection challenge nonetheless fails for the same reasons his due process challenge fails. As we have explained, exclusion of manslaughter as a lesser included offense of Watson murder does not implicate a fundamental right, and Munoz does not claim to be a member of a suspect class. As we have also explained, the vehicular manslaughter statutes are reasonably related to the legitimate legislative purpose of providing a wider and more nuanced range
D. The Prosecution Was Within Its Discretion To Charge Munoz With Murder Only And Refuse To Consent To An Instruction On Gross Vehicular Manslaughter While Intoxicated
Munoz argues that it was fundamentally unfair for the prosecution to charge him with a Watson murder, then deny him a manslaughter instruction as a lesser included offense by omitting allegations of drinking and driving from the information. Munoz also objects that the prosecution refused to consent to an instruction on manslaughter as a lesser related offense. Munoz characterizes this as “manipulation of the charging procedures.” We disagree.
A prosecutor has broad discretion when selecting which offenses to charge, and “[t]he courts do not generally supervise these ‘purely prosecutorial function[s].’ ” (People v. Ceja (2010) 49 Cal.4th 1, 7, second alteration in original.) Even when two different statutes prescribe different punishments for the same conduct, a prosecutor may, without violating constitutional principles, choose to charge under one and not the other absent a “showing that a defendant ‘has been singled out deliberately for prosecution on the basis of some invidious criterion.’ ” (People v. Wilkinson (2004) 33 Cal.4th 821, 838-839 [prosecutor‘s decision to charge the defendant with battery on a custodial officer without injury instead of battery on a custodial officer with injury where the former charge arguably carried stiffer
It is also well established that, absent the prosecution‘s consent, a defendant cannot compel the trial court to instruct on an uncharged lesser offense not necessarily included in a charged offense, even if the lesser offense “bear[s] some conceptual and evidentiary ‘relationship’ ” to the greater offense. (Birks, supra, 19 Cal.4th at p. 112; People v. Rangel (2016) 62 Cal.4th 1192, 1230 [” ‘[I]nstruction on a lesser related offense is proper only upon the mutual assent of the parties.’ “].) Among its reasons for this rule, Birks stated that “[o]nce the relative precision of necessary inclusion is left behind, the parties and the courts are cast adrift in a trackless sea,” with “no clear standards for determining” when a court must instruct on a lesser related offense. (Birks, at p. 131.) The court cautioned that “[t]his leaves an accused potentially infinite latitude to argue a sufficient link” justifying an instruction. (Ibid.)
Munoz‘s argument asks us to cast ourselves into Birks‘s “trackless sea” to determine if, based on the evidence in a given case, the prosecution in fairness should have charged additional crimes or consented to additional instructions. This is no different than requiring trial courts to review the record and instruct on uncharged but not necessarily included offenses supported by the evidence, something clearly not permitted under Birks. While in a particular case it might be relatively straightforward to determine what other offenses the evidence
Munoz concedes that no case has “definitively decided” that the prosecution “violates due process of law when it deliberately omits allegations in the pleading instrument to preclude instructions on lesser included offenses or to permit multiple convictions,” but argues that some cases have so suggested. He cites Montoya, in which the Supreme Court held that the accusatory pleading in that case did not “include the requisite allegations” for the lesser offense of unlawful taking of a vehicle to be necessarily included in the greater offense of carjacking. (Montoya, supra, 33 Cal.4th at p. 1036.) Following this conclusion, the court stated in a footnote that “[n]othing before us suggests that the prosecutor deliberately omitted information from the allegations for carjacking so as to avoid including the facts necessary for the unlawful taking of a vehicle and to thereby subject defendant to conviction for both offenses.” (Id. at p. 1036, fn. 5.)
This footnote says nothing more than there was no evidence of deliberate omission before the court, and therefore the court was, at most, leaving that issue for another day. It does not compel the conclusion that a prosecutor‘s deliberate omission of allegations is improper.
Munoz also cites Ortega (Andrew), which, among the reasons in support of its expanded accusatory pleading test, stated that “it would be unjust to allow the prosecutor, by controlling the language in the charging document, to also control whether the jury considers [a] lesser offense” established by
E. The Trial Court Did Not Abuse Its Discretion By Denying Munoz Juror Contact Information After The Trial
Munoz argues that a letter sent by a juror to the trial court after trial showed evidence of undue influence on the verdict, and that the trial court abused its discretion by not providing the juror‘s contact information to Munoz‘s counsel for further investigation. We disagree.
1. Additional factual background
The trial court received two letters from a juror (Juror Two) after trial ended. The first was dated October 21, 2016, approximately three weeks after the jury entered its verdict. The letter expressed Juror Two‘s desire “to discuss the reasoning that led to my verdict.” (Underlining omitted.) Juror Two wrote, “I went into the courtroom wanting to find [Munoz] not guilty. During the whole trial, I was looking for a ‘loophole’ that would allow such a verdict!” The letter asked the trial court for “an opinion on the reasoning that led to my decision.” The letter went on to detail Juror Two‘s thoughts about the verdict and the reasoning underlying it, and concluded by inviting the trial judge to meet for coffee. The second letter, dated November 22, 2016, asked for further explanation about one of the jury instructions pertaining to when a criminal act begins.
2. Applicable law
Following the recording of a jury‘s verdict in a criminal trial, the trial court must seal the record of “personal juror identifying information,” including “names, addresses, and telephone numbers.” (
3. Analysis
Munoz identifies two sections of the first letter which he claims show evidence of juror misconduct. The first section stated that “[f]rom the very beginning, I knew [Munoz] was not ‘an innocent!’ His prior history speaks for [itself]. He has broken more laws than I know of and deserves to be held accountable and punished. But still, I didn‘t want to find him guilty! I looked for any loophole that could use to deliver a different verdict.” (Italics, boldface, and underlining omitted.)
Munoz argues this section of the letter establishes misconduct in three ways. First, he claims the juror “prejudged the case and applied the reasonable doubt [standard] in reverse order” by presuming Munoz to be guilty from the outset. Second, he claims Juror Two improperly considered Munoz‘s “past crimes to support the guilty verdict.” Third, he argues Juror Two “relied on false information” because Munoz‘s purported past crimes were in fact misdemeanor Vehicle Code violations.
Other sections of the letter, however, contradict Munoz‘s interpretation. Towards the end of the letter Juror Two wrote, “I found [Munoz] guilty, not because he was driving intoxicated, but because he made a conscious decision to break the law; he was on parole and he knew he had the prior DUI! He should be held accountable, for his decisions, when he had the mental facilities to act lawfully. He willfully chose not [to].” (Underlining omitted.) This clarifies that, to the extent Juror Two took into account Munoz‘s past acts, it was in the context of Munoz‘s knowledge of the perils and illegality of driving while intoxicated, a proper factor in assessing implied malice under Watson.
In the second section of the letter identified by Munoz, Juror Two wrote, “Some of us did entertain reasonable doubt, but most found [Munoz] guilty more because of their reaction to the brutal death of [Krpikyan] and not, necessarily, the details of the Law! [My opinion‘].” (Final brackets and apostrophe in original.) Munoz argues this indicates that “the emotional nature of the case may have improperly swayed the jury‘s verdict.”
The trial court, in denying Munoz‘s request to release juror information, identified the above section of the letter as “[t]he closest thing to misconduct,” but noted Juror Two‘s statement that it was Juror Two‘s “opinion,” with no specific details in support. We agree with the trial court that Juror Two‘s opinion alone, with no additional evidence, is “speculative” and “unsupported,” and the trial court did not abuse its discretion in finding it insufficient to establish good cause to release sealed juror information. (Cook, supra, 236 Cal.App.4th at p. 346; see also People v. Danks (2004) 32 Cal.4th 269, 302 [declarations pertaining to ” ’ “subjective reasoning processes of the individual juror” ’ ” inadmissible to prove juror misconduct; ” ’ “[t]his limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent” ’ “].)
F. Admission Of A Photograph Of Munoz Smiling Did Not Result In A Miscarriage Of Justice
Munoz argues the trial court should have excluded a photograph of him smiling during his arrest under
1. Additional background
Munoz filed a motion in limine in the trial court to exclude a photograph of himself. In the photograph, Munoz appears to be smiling at the camera. His arms appear to be behind his back and a CHP officer is standing directly behind him. Munoz argued
During the hearing on the motion, the prosecution argued that the photograph was relevant to show that Munoz was intoxicated, as indicated by his “bloodshot and watery” eyes, but still conscious and aware enough to respond to the “social cue” of his picture being taken, despite his intoxicated state. The prosecution argued this was relevant to contest Munoz‘s anticipated defense that because of “alcoholic blackout” and sleep deprivation, he was unable to form the requisite intent for murder.
The trial court denied the motion, finding the photograph “relevant to the extent of [Munoz‘s] intoxication.” The trial court stated that “[w]hen people are intoxicated, they sometimes act inappropriately under the circumstances. And if this were a smile, indeed, one can attribute the inappropriate behavior to his degree of intoxication.”
The prosecution introduced the photograph at trial.
2. Analysis
We decline to address whether the trial court erred in admitting the photograph, because any such error did not result in a ” ’ ” ‘manifest miscarriage of justice.’ ” ’ ” (Jones, supra, 3 Cal.5th at p. 609.) We deem any error in applying
As we have discussed, evidentiary factors supporting conviction for a Watson implied malice murder include
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
JOHNSON, Acting P. J.
CURREY, J.*
* Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.