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
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 admission of the photograph resulted in a miscarriage of justice. Accordingly, we affirm the judgment.
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 Watson
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
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.
C. Postcollision events
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
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.
PROCEDURE
An information charged Munoz with murder ( Pen. Code, § 187, subd. (a) )
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
1. Applicable law
a. Murder and manslaughter
"Murder is the unlawful killing of a human being ... with malice aforethought." ( § 187, subd. (a).) "[M]alice may be express or implied." (§ 188.) Implied malice does not require an intent to kill. ( People v. Swain (1996)
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)
Involuntary manslaughter "is the unlawful killing of a human being without malice," occurring "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).) Involuntary manslaughter "is punishable by imprisonment ... for two, three, or four years." (§ 193, subd. (b).)
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. (§ 191.5.) This offense requires that, in addition to satisfying the elements of vehicular manslaughter, the defendant be driving in violation of sections 23140, 23152, or 23153 of the Vehicle Code, which pertain to driving under the influence of alcohol or drugs. (§ 191.5, subds. (a), (b).) A defendant who violates this statutory provision with gross negligence may be imprisoned for four, six, or ten years, and without gross negligence for 16 months or two or four years. (Id. , subd. (c)(1), (2).) Section 191.5 expressly does not prohibit or preclude a charge of murder on a theory of implied malice. (Id. , subd. (e).)
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 ,
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
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 the involuntary manslaughter statute. (§ 192, subd. (b); see Wolfe , supra , 20 Cal.App.5th at pp. 685-686.) Thus, section 192, subdivision (b) effectively eliminates involuntary manslaughter as a lesser included offense of murder when "committed in the driving of a vehicle." (§ 192, subd. (b).)
Our Supreme Court has held that gross vehicular manslaughter while intoxicated
While Sanchez addressed the question of lesser included offenses in the context of dual convictions, the test it applied is identical to that applied in cases involving instructions on lesser included offenses. (See, e.g., People v. Birks (1998)
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 ,
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 encompass gross vehicular manslaughter while intoxicated, namely the use of a vehicle and intoxication. (Cf.
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
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)
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." (
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)
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 ,
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 authority (see Auto Equity Sales, Inc. v. Superior Court (1962)
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,
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 Fourteenth Amendment to the United States Constitution. We disagree.
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)
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)
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 ,
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 ,
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)
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
Munoz's arguments suggest that the Legislature's intention in creating the separate vehicular manslaughter statutes was to exclude manslaughter as a lesser included offense of a Watson murder. Even assuming this was the Legislature's intent, we are doubtful the statutory scheme would be unconstitutional, given that a defendant has no fundamental right to instructions on lesser offenses.
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 ,
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.
"Equal protection of the laws means that similarly situated persons shall be treated similarly unless there is a sufficiently good reason to treat them differently." ( People v. Castel (2017)
We will assume for the sake of argument that defendants charged with
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)
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 ,
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
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 ,
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 evidence at the preliminary hearing. ( Ortega (Andrew ), supra ,
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.
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.)
The trial court provided copies of the letters to the parties with Juror Two's identifying information redacted. Munoz filed a petition requesting Juror Two's address and telephone number, arguing the letters contained evidence of juror misconduct relevant to Munoz's motion for a new trial. The trial court denied the petition, finding that "the letters essentially are a narrative of the challenges that occur in virtually every deliberation process" and that Juror Two's "remarks do not constitute recognized juror misconduct."
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." ( Code Civ. Proc., § 237, subd. (a)(2).) "Any person may petition the court for access to these records" upon a "prima facie showing of good cause for the release of the" juror information. (Id. , subd. (b).) This showing must " 'support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.' " ( People v. Carrasco (2008)
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 I 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.
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."
Munoz argues that Juror Two forfeited any right to privacy by writing to the trial court and requesting to meet with the judge. We disagree. In writing the letter to the trial court, Juror Two did not reveal his or her contact information to anyone who did not already have it. The letters were not directed to the parties, who obtained the letters from the trial court with the identifying information redacted. The trial court did not abuse its discretion by preserving Juror Two's confidentiality despite the letters.
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 Evidence Code section 352, which grants courts the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review a trial
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 that the photograph was irrelevant, particularly because it was taken before Munoz knew he had killed someone, and that it was unduly inflammatory.
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 ,
As we have discussed, evidentiary factors supporting conviction for a Watson implied malice murder include " '(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 , supra , 20 Cal.App.5th at pp. 682-683,
The judgment is affirmed.
We concur:
JOHNSON, Acting P. J.
CURREY, J.
Notes
Watson , supra ,
Undesignated statutory references are to the Penal Code.
A third category of vehicular manslaughter applies when the vehicular accident "was knowingly caused for financial gain," such as to give rise to a "false or fraudulent claim." (§§ 192, subd. (c)(3), 550, subd. (a)(3).) This category is not at issue in this appeal.
In Montoya , the Supreme Court held that under the accusatory pleading test, the unlawful taking of a vehicle was not a lesser included offense of carjacking where the accusatory pleading did not allege that the vehicle was taken without the owner's consent. (Montoya , supra ,
Despite the "flawed reasoning" of Rush , the Supreme Court agreed with its ultimate holding that grand theft is a lesser included offense of robbery. (Ortega (Ernesto ), supra , 19 Cal.4th at pp. 697-698,
Montoya questioned whether the accusatory pleading test was appropriate in the context of determining whether a defendant could be convicted of two crimes, but declined to resolve the question because in that case the accusatory pleading test did not aid the defendant. (Montoya , supra , 33 Cal.4th at pp. 1035-1036,
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.