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The People v. Conrado Octavio Cruz Rivera

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 14, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CONRADO OCTAVIO CRUZ RIVERA, DEFENDANT AND APPELLANT.

Appeal from a judgment of the Superior Court of Orange County, (Super. Ct. No.07NF2363) Frank F. Fasel, Judge.

The opinion of the court was delivered by: Fybel, J.

P. v. Rivera

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Affirmed.

INTRODUCTION

Defendant Conrado Octavio Cruz Rivera crashed his truck into a sport utility vehicle, killing one of its two occupants. Rivera's blood alcohol level was 0.20 percent at the time of the accident. A jury convicted Rivera of second degree murder.

Rivera argues the trial court erred by receiving evidence of voluntary intoxication on the issue of implied malice in violation of Penal Code section 22, subdivision (b) (section 22(b)) as amended in 1995.*fn1 Rivera also argues the trial court violated his constitutional rights by (1) instructing the jury to consider evidence of voluntary intoxication to prove, but not negate, implied malice; (2) failing to instruct the jury on the lesser included offense of involuntary manslaughter and the related lesser offense of gross vehicular manslaughter; and (3) precluding his counsel from arguing during closing argument that Rivera was guilty of involuntary manslaughter or gross vehicular manslaughter.

The jury instructions on implied malice are constitutional and accurately reflect the legislative intent behind section 22(b). The trial court did not violate Rivera's rights by refusing to instruct the jury on lesser included or related offenses or by restricting defense counsel's closing argument. Accordingly, we affirm.

FACTS

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

On June 24, 2007, at about 1:30 a.m., Gonzalo Riutort was driving eastbound on the 91 Freeway in the far right lane of traffic. He saw a vehicle, subsequently identified as Rivera's pickup truck, approaching from the rear of his car and weaving in and out of several eastbound lanes. Rivera nearly sideswiped Riutort's car as he passed Riutort on the left at a speed of 75 to 80 miles per hour. When Rivera attempted to merge into the right lane in front of Riutort, Rivera's truck struck the left-side rear of a Chevrolet Blazer driven by Katherine Aceves. Her husband, Ruben Aceves, was in the front passenger seat. (To avoid confusion, we will refer to the Katherine and Ruben Aceves by their first names; we intend no disrespect.) The impact knocked Ruben unconscious, and caused the Aceveses' Blazer to veer off the freeway and collide with two electrical boxes. After colliding with the second electrical box, the Blazer traveled about 50 feet, collided with a concrete drainage ditch, and traveled another 10 to 15 feet before sliding into a chain link fence and coming to rest. Rivera lost control of his truck and it overturned onto the shoulder of the freeway.

Riutort stopped his vehicle, called 911, and approached the scene of the accident. He saw Rivera stagger away from his truck. Riutort sat Rivera down to prevent him from sustaining additional injuries or fleeing the scene and then checked on the occupants of the Blazer. Riutort saw Katherine in the driver's seat. Ruben had regained consciousness and had gotten out of the Blazer. After seeing Rivera try to stagger away again, Riutort sat him down and prevented him from getting up until law enforcement arrived.

California Highway Patrol Officer Joseph Timassy arrived at the scene of the accident at about 1:37 a.m. and found Katherine unconscious inside the Blazer. Rivera, Katherine, and Ruben were transported to Western Medical Center in Santa Ana shortly thereafter. At about 2:55 a.m., Timassy spoke with Rivera in the hospital's emergency room. Rivera, who had a fractured neck, was on a gurney with his head immobilized by a collar restraint. Timassy noticed Rivera had red, watery eyes, slurred and slowed speech, and the odor of alcohol on his breath. Rivera told Timassy he had consumed eight beers between 5:00 p.m. and 11:00 p.m. on June 23, felt drunk, and did not recall the collision. Timassy attempted to conduct two field sobriety tests on Rivera, but he thwarted Timassy's attempt to administer a horizontal gaze nystagmus test by refusing to follow Timassy's fingertip with his eyes, and prevented Timassy from collecting a breath sample with a preliminary alcohol screening device by blocking the device's mouthpiece with his tongue.

At about 3:38 a.m., a forensic phlebotomist drew a sample of Rivera's blood. The blood sample was analyzed at the Orange County Sheriff-Coroner's Department crime lab and found to contain 0.17 percent ethyl alcohol. Applying retrograde extrapolation and assuming average alcohol elimination rates, a senior forensic scientist calculated that Rivera's blood would have contained approximately 0.20 percent ethyl alcohol at the time of the collision.

On July 4, 2007, Katherine died from injuries sustained in the crash. Ruben survived.

In 2004, Rivera had pleaded guilty to misdemeanor driving under the influence, had been placed on three years' informal probation, had been ordered to complete a nine-month first offender alcohol program, and had been directed to attend a Mothers Against Drunk Driving (MADD) victim impact panel. In May 2004, he attended the MADD victim impact panel. The speaker told those attending that her four-year-old son and a neighbor had been killed by a drunk driver, warned them of the dangers of drinking and driving, and asked them not to drink and drive again.

In 2006, Rivera again pleaded guilty to misdemeanor driving under the influence and was placed on three years' informal probation on the condition that he serve 60 days in Orange County jail. He also had been ordered to complete an 18-month multiple offender alcohol program and attend another MADD victim impact panel. Rivera initialed the following advisory on the guilty plea form: "I have been advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, I can be charged with murder."

PROCEDURAL HISTORY

The Orange County District Attorney filed an information charging Rivera with three felonies and a misdemeanor. Rivera was charged with the murder of Katherine in violation of section 187, subdivision (a) (count 1), driving under the influence with two or more prior convictions in violation of Vehicle Code section 23153, subdivision (a) (count 2), driving with blood alcohol greater than 0.08 percent with two or more prior convictions in violation of Vehicle Code section 23153, subdivision (b) (count 3), and driving with a suspended license in violation of Vehicle Code section 14601.2, subdivision (a) (count 4). It was further alleged, with regard to counts 1, 2, and 3, that he had two or more prior convictions for driving under the influence, in violation of Vehicle Code section 23152, subdivisions (a) and (b).

On the People's motion, counts 2 and 3 were dismissed and count 4 was bifurcated before trial. During trial, evidence of Rivera's voluntary intoxication was admitted to prove implied malice, an element of second degree murder. The court also received in evidence documents showing Rivera had pleaded guilty to misdemeanor driving under the influence in 2004 and again in 2006.

After closing argument, the trial court instructed the jury to take into account Rivera's decision to drink and drive in determining whether he acted with implied malice. The court read a modified version of CALCRIM No. 520 to instruct the jury on second degree murder, as follows: "The defendant is charged in Count 1 with Second Degree murder. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought[.] [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. [¶] 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. [¶] An act committed with Implied Malice is Murder in the Second Degree."

The court also read the jury two special instructions relating to CALCRIM No. 520. Special instruction # 1 provided, "[t]he 'Act' as referred to in the definition of implied malice, refers to driving under the influence with conscious disregard for life, not the traffic violation that may have preceded an accident." Special instruction # 2 provided, "[i]n determining whether the defendant acted with conscious disregard for human life, consider his state of mind both before and during the time he drove his vehicle."

Rivera's counsel requested jury instructions on the offenses of involuntary manslaughter under section 192, subdivision (b) and/or gross vehicular manslaughter while intoxicated under section 191.5. The prosecutor objected, and the trial court denied the requests.

The jury found Rivera guilty of second degree murder. The trial court dismissed count 4 on the People's motion and sentenced Rivera to an indeterminate prison term of 15 years to life.

I.DISCUSSION

Instructing the Jury to Consider Rivera's Voluntary Intoxication as Inculpatory Evidence of Implied Malice Did Not Violate Section 22(b), Due Process, or Equal Protection.

Rivera contends his murder conviction must be reversed because the trial court erred by instructing members of the jury to consider evidence of voluntary intoxication when deciding whether Rivera acted with implied malice. Rivera argues section 22(b) prohibits the prosecution and the defense from introducing evidence of voluntary intoxication on the issue of implied malice. If section 22(b) allowed the prosecution to prove implied malice with evidence of voluntary intoxication, then, Rivera asserts, the statute must allow him to submit evidence of voluntary intoxication to negate implied malice--otherwise, he contends, section 22(b) violates due process and equal protection. We reject each of Rivera's contentions.

A.Section 22(b) Does Not Prohibit the Prosecution from Presenting Evidence of Voluntary Intoxication to Prove Implied Malice.

Rivera argues section 22(b) prohibits the prosecution from introducing evidence of voluntary intoxication to prove implied malice, and, therefore, the modified version of CALCRIM No. 520 given to the jury violated section 22(b). He bases this argument on the express terms of the statute, as amended in 1995, and argues previous opinions have not directly addressed this issue.

Implied malice requires, inter alia, proof that the defendant (1) knew his or her conduct endangered the life of another and (2) acted with a conscious disregard for life. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) California courts have long recognized that driving while intoxicated is an act which may support a conviction for second degree murder under an implied malice theory. (See, e.g., People v. Martin (2000) 78 Cal.App.4th 1107, 1110 (Martin); People v. Autry (1995) 37 Cal.App.4th 351, 358; People v. Watson (1981) 30 Cal.3d 290, 300-301.) "'One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (People v. Watson, supra, at pp. 300-301.)

Before 1995, evidence of voluntary intoxication could be introduced to negate implied malice. (§ 22, former subd. (b).) As amended in 1982, section 22, former subdivision (b) stated: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." In People v. Whitfield (1994) 7 Cal.4th 437, 446, 450 (Whitfield), the Supreme Court interpreted "malice aforethought, when a specific intent crime is charged" to include implied malice. As a result, the Whitfield court held voluntary intoxication could be used simultaneously by the prosecution to prove implied malice and by the defense to negate implied malice. (Id. at p. 451.) In reaction to the holding in Whitfield, the Legislature amended section 22(b) in 1995. (People v. Mendoza (1998) 18 Cal.4th 1114, 1125-1126.)

Section 22, subdivision (a) states: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." Section 22(b), which lists exceptions to the rule of section 22, subdivision (a), now expressly provides, "[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought."

We must construe statutes "'to effectuate their purpose and intent, reading statutory schemes as a whole and harmonizing their provisions.' [Citations.] We read the words of statutes with their commonsense meanings, and avoid interpretations 'which defy common sense or which might lead to mischief or absurdity, including literal meanings which would lead to a result not intended by the Legislature.'" (People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 428.) Courts may look to secondary sources when the plain language of a statute fails to disclose the Legislature's intent. (People v. Tillotson (2007) 157 Cal.App.4th 517, 544.) Looking at the statutory context and legislative history of section 22(b), it is clear the Legislature did not intend the 1995 amendment to prohibit the prosecution from using evidence of voluntary intoxication to prove implied malice.

The omission of implied malice from section 22(b)'s list of exceptions demonstrates the Legislature's intent that implied malice murder fall within the general rule set forth in section 22, subdivision (a). The omission does not indicate the Legislature intended to abrogate the longstanding rule, approved in People v. Watson, supra, 30 Cal.3d at pages 300-301, that evidence of driving under the influence can be used to establish implied malice.

In addition, the 1995 amendment to section 22 was intended to annul the holding in Whitfield, supra, 7 Cal.4th 437. Whitfield approved the use of voluntary intoxication to negate implied malice, concluding that implied malice murder was a specific intent crime for purposes of the former version of section 22(b). (Whitfield, supra, 7 Cal.4th at pp. 450-451.) "The decisive problem with Whitfield is that it contradicts the specific intent doctrine it purports to serve. California law provides that aggravated drunk driving can increase a defendant's liability for a vehicular homicide to a second-degree murder. Post Whitfield, however, intoxication, if sufficiently severe, can simultaneously mitigate liability to involuntary or vehicular manslaughter by negating implied malice. Allowing the same fact to both aggravate and mitigate liability is contradictory and confusing to juries. . . . In effect, Whitfield created a strained interpretation of California homicide law and created a needless loophole that is suspiciously close to the legislatively discredited diminished capacity defense." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 121 (1995-1996 Reg. Sess.) July 11, 1995, p. 5, italics added.) Thus, the Legislature's decision to omit implied malice from the list of exceptions set forth in section 22(b) was intended to restrict the use of intoxication evidence to negate implied malice.

We conclude the Legislature amended section 22, former subdivision (b) in 1995 to allow implied malice to be proved with evidence of voluntary intoxication and to prevent the defense from using voluntary intoxication to negate implied malice. Therefore, the trial court's jury instructions on implied malice were not erroneous under section 22(b).

B.Section 22(b)'s Proscription of the Use of Voluntary Intoxication Evidence to Negate Implied Malice Does Not Violate Rivera's Constitutional Rights.

Rivera argues that if the prosecution could introduce evidence of voluntary intoxication to prove implied malice under section 22(b), he must be permitted to introduce evidence of voluntary intoxication to negate implied malice. He asserts: "The California statute, if interpreted as a single-edged sword, suffers from the obvious defect that it is entirely one-sided, barring only the defense from making use of intoxication evidence." Rivera contends section 22(b), if so interpreted, would violate due process and equal protection. We conclude section 22(b) redefines the mental states required for implied malice murder and therefore does not violate due process or equal protection.

California Courts of Appeal have held uniformly that under the 1995 amendments to section 22, former subdivision (b), evidence of a defendant's voluntary intoxication is not admissible to negate implied malice. (People v. Turk (2008) 164 Cal.App.4th 1361, 1375; People v. Timms (2007) 151 Cal.App.4th 1292, 1298 (Timms); Martin, supra, 78 Cal.App.4th at pp. 1114-1115; People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6 [all four cases rely on statutory context and legislative history to conclude 1995 amendment to section 22, former subdivision (b) precludes use of voluntary intoxication evidence to negate implied malice].) In Martin and Timms, the courts also held that precluding the defense from introducing evidence of voluntary intoxication to negate implied malice does not violate due process or equal protection. (Martin, supra, at pp. 1115-1117; Timms, supra, at pp. 1301-1302.) Neither of these cases precisely address Rivera's "single-edged sword" argument, but they do analyze the case on which Rivera bases his argument, Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff).

In Egelhoff, the United States Supreme Court considered the constitutionality of a Montana statute similar to section 22(b), which provided that voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of the offense." (Mont. Code Ann., § 45-2-203 (1995); Egelhoff, supra, 518 U.S. at pp. 39-40.) The defendant had been convicted of deliberate homicide, which required proof he "'purposely'" or "'knowingly'" caused the death of another, after the trial court precluded him from offering evidence he did not harbor either mental state due to extreme intoxication. (Egelhoff, supra, at pp. 40-41.) A total of four justices signed an opinion authored by Justice Scalia, which upheld the Montana statute as constitutional, using the following rationale: (1) the right to introduce relevant defense evidence is not absolute (id. at pp. 42-43); (2) a restriction on the right to introduce defense evidence violates the federal due process clause only when it "'"offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"'" (id. at p. 43); and (3) the right to have a jury consider evidence of voluntary intoxication is not a "fundamental principle of justice" for purposes of this rule (id. at pp. 43-48, 51-52, 56).

In her concurring opinion, Justice Ginsburg concluded the Montana Legislature could bar consideration of voluntary intoxication on the issue of a defendant's state of mind without infringing the defendant's right to due process. (Egelhoff, supra, 518 U.S. at p. 56 (conc. opn. of Ginsburg, J.).) At the outset, Justice Ginsburg explained that a statute that "is simply a rule designed to keep out 'relevant, exculpatory evidence'" would violate due process, but a statute that is a "redefinition of the mental-state element of the offense" would not violate due process. (Id. at p. 57 (conc. opn. of Ginsburg, J.).) Justice Ginsburg concluded Montana's statute did not violate due process because it redefined the mental state element of the offense and thus "embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions." (Id. at p. 57 (conc. opn. of Ginsburg, J.).)

Justice Ginsburg explained: "Other state courts have upheld statutes similar to [the Montana statute], not simply as evidentiary rules, but as legislative redefinitions of the mental-state element. See State v. Souza, 72 Haw. 246, 249 . . . (1991) ('legislature was entitled to redefine the mens rea element of crimes and to exclude evidence of voluntary intoxication to negate state of mind')." (Egelhoff, supra, 518 U.S. at p. 59 (conc. opn. of Ginsburg, J.).) In State v. Souza, the Hawaii Supreme Court upheld the constitutionality of an amended statute that provided, "[e]vidence of self-induced intoxication of the defendant is admissible to prove or negative conduct or to prove state of mind sufficient to establish an element of an offense. Evidence of self-induced intoxication of the defendant is not admissible to negative the state of mind sufficient to establish an element of the offense." (State v. Souza (1991) 72 Hawaii 246, 249.) By citing the statute in State v. Souza, Justice Ginsburg clarified her belief that by allowing evidence of voluntary intoxication to prove, but not disprove, the requisite mental state for a crime, a statute redefines the mental state element of the offense and does not violate due process. (Egelhoff, supra, 518 U.S. at p. 59 (conc. opn. of Ginsburg, J.).)

Relying on Egelhoff, Rivera contends section 22(b) violates due process because it fails to redefine the mental state element of second degree murder and excludes relevant, exculpatory evidence. Rivera argues Justice Ginsburg would only hold constitutional those statutory amendments that either prevent both the prosecution and the defense from submitting evidence on the required mental state or have no required mental state. Rivera misreads Egelhoff.

We conclude section 22(b) in purpose and effect redefines the mental state for implied malice murder and is not a rule of evidence. Section 22(b) is similar to the Montana statute at issue in Egelhoff and the Hawaii statute cited in State v. Souza. As recognized by Justice Ginsburg in her concurring opinion, the Montana statute and the Hawaii statute satisfied due process because both redefined the mental state elements of the offense and therefore, in effect, redefined the crime. The 1995 amendment to section 22, former subdivision (b) similarly redefined the intent element of implied malice murder by precluding evidence of voluntary intoxication to negate malice and thereby redefined the required state of implied malice murder.

The court in Timms analyzed Justice Ginsburg's concurring opinion in Egelhoff to reach the same conclusion. In Timms, the court concluded that "section 22, subdivision (b) is not 'merely an evidentiary prescription'; rather, it 'embodies a [valid] legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.'" (Timms, supra, 151 Cal.App.4th at p. 1300 [citing Egelhoff, supra, 518 U.S. at p. 57 (conc. opn. of Ginsburg, J.)].) The Timms court rejected the defendant's argument that section 22(b), unlike the Montana statute at issue in Egelhoff, requires "a finding of implied malice [that] depends on a determination that the defendant subjectively appreciated the risk involved in his or her actions." (Timms, supra, at p. 1301.) The Timms court concluded section 22(b), as the Montana statute, removed voluntary intoxication from the mens rea inquiry. (Timms, supra, at p. 1301.) "The prosecution [in Egelhoff] thus had only to prove that the defendant had actual knowledge or purpose, or that he or she killed under circumstances that would otherwise establish such knowledge or purpose but for his or her voluntary intoxication. [Citation.] Section 22 imposes no different requirement." (Ibid.) The court concluded section 22 does not violate due process. (Timms, supra, at p. 1301.)

In Martin, the court reasoned section 22(b) excludes relevant evidence of voluntary intoxication to negate implied malice because "'a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences.'" (Martin, supra, 78 Cal.App.4th at p. 1116.) The court held this was a "'"valid" reason'" under Egelhoff. (Ibid.) As a result, the court concluded the statute did not violate due process. (Id. at p. 1117.)

We conclude the 1995 amendment to section 22, former subdivision (b) constituted a redefinition of the mental state element for implied malice and is not a rule of evidence. Section 22(b) therefore does not violate due process by prohibiting the defense from introducing evidence of voluntary intoxication to negate implied malice. For the same reason, section 22(b) does not create "disparate treatment of prosecution and defense," as Rivera argues, and does not violate equal protection.

II.The Trial Court Did Not Err by Refusing to Instruct the Jury on Involuntary Manslaughter or Gross Vehicular Manslaughter.

Rivera argues the trial court erred when it refused to instruct the jury on involuntary manslaughter as a lesser included offense of second degree implied malice murder or, alternatively, gross vehicular manslaughter while intoxicated as a lesser related offense of second degree implied malice murder. Rivera contends the trial court's decision not to instruct on these lesser offenses violated his constitutional right to jury instructions on (1) lesser included offenses precluded by statute and (2) lesser related offenses, when instruction on lesser included offenses is precluded by statute. We conclude no such constitutional right exists.

In California, the prosecution has broad discretion to decide with which offenses to charge a defendant, and the courts do not generally supervise this prosecutorial function. (People v. Ceja (2010) 49 Cal.4th 1, 7; People v. Richardson (2008) 43 Cal.4th 959, 1013.) There is a limited exception to this rule for lesser included offenses: "Due process requires that the jury be instructed on a lesser included offense only when the evidence warrants such an instruction." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145; accord, Hopper v. Evans (1982) 456 U.S. 605, 611.) "[S]uch instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162.)

A trial court is under no obligation to instruct the jury on lesser related offenses to the charged crime. (People v. Kraft (2000) 23 Cal.4th 978, 1064; People v. Birks (1998) 19 Cal.4th 108, 112-113, 136 (Birks).) Moreover, there is no due process right to a jury instruction on a lesser related offense. (Hopkins v. Reeves (1998) 524 U.S. 88, 96-97; Birks, supra, 19 Cal.4th at pp. 112-113.)

Rivera suggests the prosecution's decision not to charge him with gross vehicular manslaughter creates a "conundrum" that can only be solved by ruling the trial court committed reversible error in failing to give his requested jury instructions. Rivera argues we should ignore California statutes and case law, reviewed ante, based on Keeble v. United States (1973) 412 U.S. 205 (Keeble).) In Keeble, a Native American defendant requested the jury be instructed on simple assault, a lesser included offense of the charged crime of assault with intent to commit serious bodily injury on an Indian reservation. (Id. at p. 206.) Under the Major Crimes Act of 1885 (18 U.S.C. § 1153), only the latter offense was listed as a crime for which the defendant could be prosecuted. (Keeble, supra, at p. 206.) Following an analysis of the legislative intent behind the Major Crimes Act of 1885, the Supreme Court concluded the defendant was entitled to a jury instruction on simple assault. (Keeble, supra, at pp. 207, 213.)

The Supreme Court reached that conclusion as a matter of statutory interpretation rather than constitutional right. The court reasoned: "[T]he [Major Crimes] Act [of 1885] expressly provides that Indians charged under its provisions 'shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' [Citation.] In the face of that explicit statutory direction, we can hardly conclude that Congress intended to disqualify Indians from the benefits of a lesser offense instruction, when those benefits are made available to any non-Indian charged with the same offense." (Keeble, supra, 412 U.S. at p. 212, fn. omitted.)

The Supreme Court next discussed the constitutional implications if it had ruled that the Major Crimes Act of 1885 precluded instruction on the included offense of simple assault: "Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction--in this context or any other--precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option--convicting the defendant of simple assault--could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions. In view of our interpretation of the Act, those are questions that we need not face." (Keeble, supra, 412 U.S. at pp. 212-213.)

Rivera contends we face those difficult constitutional questions now because section 192, subdivision (b) precluded a jury instruction on the lesser included offense of involuntary manslaughter. What Rivera appears to be arguing is that a defendant has a constitutional right to jury instructions (and a verdict) on lesser included offenses, and, if for some reason the lesser included offense is not available, then the defendant has a right to instruction on lesser related offenses. In other words, he is arguing a defendant has a constitutional right to have the jury be given an option to convict the defendant of a lesser crime than the one charged, notwithstanding statute or prosecutorial discretion.

Rivera cites no authority to support the existence of such a constitutional right. None exists. The situation alluded to in Keeble has been addressed by cases holding a defendant does have a constitutional right to instruction on lesser included offenses--but that right does not apply here.

Involuntary manslaughter is generally classified as a lesser included offense of murder.*fn2 (People v. Sanchez (2001) 24 Cal.4th 983, 989.) As discussed, the constitutional right to jury instructions on lesser included offenses is not absolute because the defendant must present evidence substantial enough for a jury to convict the defendant of the lesser included offense. (People v. Breverman, supra, 19 Cal.4th at p. 162.) Here, the evidence was not substantial enough to merit the jury's consideration of involuntary manslaughter. Rivera committed the offense by driving a motor vehicle. Section 192, subdivision (b), after defining involuntary manslaughter, states, "[t]his subdivision shall not apply to acts committed in the driving of a vehicle." Thus, by statute, he could not be charged with or convicted of involuntary manslaughter. Rivera was not "plainly guilty" (Keeble, supra, 412 U.S. at p. 213) of involuntary manslaughter and had no right to have the jury instructed on it.

Gross vehicular manslaughter while intoxicated is a lesser related offense of murder. (People v. Sanchez, supra, 24 Cal.4th at p. 992.) A defendant does not have a constitutional right to jury instructions on lesser related offenses. (Birks, supra, 19 Cal.4th at pp. 112-113.) "[P]ermitting a trial court to instruct on lesser related offenses over the objection of the prosecutor would interfere with the prosecutor's 'sole discretion to determine whom to charge with public offenses and what charges to bring.' [Citation.]" (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.) To instruct the jury on gross vehicular manslaughter in this case would have interfered with the prosecutor's discretion. Rivera cites no authority, and we have found none, for the proposition that a court can override prosecutorial discretion and instruct on a lesser related offense solely because no lesser included offenses were available.

Rivera argues we should override prosecutorial discretion because, given the "all or nothing" choice, the jury was pressured into convicting him of second degree murder. This is the very nature of prosecutorial discretion. It is up to the prosecutor, not the court, to decide what risks of acquittal to face. Thus, we cannot agree that a constitutional right to jury instructions on lesser related offenses exists when instruction on lesser included offenses is barred by statute. Accordingly, we conclude the court did not err in refusing to instruct the jury on involuntary manslaughter or gross vehicular manslaughter.

III.The Trial Court Did Not Err by Precluding Rivera from Arguing He Was Guilty of Manslaughter.

Rivera argues the trial court infringed his Sixth Amendment right to counsel by precluding his counsel from arguing in closing argument that Rivera was guilty of involuntary or gross vehicular manslaughter rather than murder. We conclude the trial court did not err by so limiting counsel's argument.

A.Background

During closing argument, the prosecutor defined express and implied malice, and stated this was "not an express malice case," but was "a case of implied malice murder." After arguing that Rivera was guilty under a theory of implied malice murder, the prosecutor told the jury it would receive two verdict forms allowing it to find Rivera either guilty or not guilty for the crime of second degree murder. The prosecutor then stated there was "no other crime" on which the jury would be instructed and argued: "In his opening statement counsel said this is not a case of murder, this is a case of manslaughter. Manslaughter is not one of the crimes that you are going to be asked to make a decision on. It doesn't apply in this case. This case is a case of murder."

During defense counsel's closing argument, the following exchange occurred:

"[Rivera's counsel]: [¶] . . . [¶] Now, I told you in opening statement that, well, this is either murder or manslaughter. And [the prosecutor] is correct, you are not going to get a manslaughter instruction or a verdict form. But that's their choice. The government has an election to choose whether to file murder--

"[The prosecutor]: Your Honor, I am going to object. This is improper.

"The Court: All right. Sustained.

"[Rivera's counsel]: Whether to file a particular charge is up to the discretion of the government."

Later, Rivera's counsel argued the prosecution was trying to hold Rivera to the same standard as someone "who points a gun at somebody and shoots them." After the prosecutor objected, the following exchange took place outside the jury's presence:

"The Court: [Rivera's counsel], are you going into any of the filing issues in your argument, or are you responding to the comparison between what might be perceived as a so-called homicide versus vehicular type of homicide within the meaning of the law?

"[Rivera's counsel]: I am just responding to what [the prosecutor] said about murder is murder, and whether--she brought up the scenario about the gun, and so that's what I am responding to.

"The Court: All right. Well, if it is within the course of [the prosecutor]'s opening argument, that's fine. But if you are segueing into filing policy, then the court would sustain the objection. So let's just clarify.

"[Rivera's counsel]: Okay. I am not."

Rivera's counsel resumed arguing that Rivera should not be held to the same standard as someone who shoots a gun pointblank or stabs another person.

B.Analysis

"A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citation.] '[The] right is not unbounded, however; the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark.'" (People v. Benavides (2005) 35 Cal.4th 69, 110.) A court may not deny the defendant the opportunity to present final argument, but may limit arguments that are unduly time-consuming, "stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial." (Herring v. New York (1975) 422 U.S. 853, 862-863.)

Rivera argues his trial counsel was denied the opportunity to argue his theory of manslaughter and to correct the prosecutor's assertion that manslaughter was not applicable. Manslaughter is not a defense; it is an offense, and one that was not charged in this case. As we have explained, Rivera was not entitled to instructions on involuntary manslaughter or gross vehicular manslaughter, and neither crime was charged. Section 192, subdivision (b) states that involuntary manslaughter "shall not apply to acts committed in the driving of a vehicle." Gross vehicular manslaughter is not a lesser included offense of murder (People v. Sanchez, supra, 24 Cal.4th at p. 992), and a defendant does not have a right to jury instructions on lesser related offenses (Birks, supra, 19 Cal.4th at pp. 112-113). Argument regarding manslaughter therefore would have "stray[ed] unduly from the mark." (Herring v. New York, supra, 422 U.S. at p. 862.) As stated in People v. Valentine, supra, 143 Cal.App.4th at page 1387, "[i]t has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged."

Further, permitting Rivera's counsel to delve into the uncharged crimes of involuntary manslaughter and gross vehicular manslaughter would have created the risk of confusing the jury. The jury did not receive instruction on or verdict forms for involuntary manslaughter or gross vehicular manslaughter. The jury was asked only to find Rivera guilty or not guilty of murder. Arguing that Rivera was actually guilty of involuntary or gross vehicular manslaughter might have confused or misled the jury as to what it was supposed to decide.

Rivera was not denied the right to argue a theory of defense. Rivera's theory was that he was not guilty of implied malice murder because he was guilty of involuntary or gross vehicular manslaughter. That theory was based on the assertion he lacked the requisite mental state to be convicted of murder. Thus, he did not need to argue he was guilty of manslaughter to present his theory of defense: he could, and did, argue he was innocent of murder because he lacked the required mental state. Rivera was not precluded from or limited in making that argument. Rivera's counsel was permitted to argue that convicting Rivera of murder would be holding him to the same standard as is held against a defendant who drew a gun and shot another person pointblank.

Rivera argues he should have been allowed to correct the prosecution's statement that manslaughter "doesn't apply in this case." But the prosecutor's comment was correct: involuntary manslaughter did not apply to this case by virtue of section 192, subdivision (b), and gross vehicular manslaughter did not apply to this case because it was not charged and was not a lesser included offense of murder.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

MOORE, ACTING P. J. IKOLA, J.


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