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.
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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.
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."
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 ...