Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF1592 Daniel Barrett McNerney, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright Ladendorf and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Ivan Gandarilla challenges his conviction for second degree murder. A passenger in defendant’s car was killed when defendant was involved in a collision while under the influence of alcohol. First, defendant argues the trial court erred by excluding statistical evidence of the relationship between arrests for driving under the influence (DUI), DUI fatalities, and the natural and probable consequence that DUI is dangerous to human life. We find no abuse of discretion in the court’s ruling.
Second, defendant argues the trial court erred by failing to instruct the jury on the lesser included offense of involuntary manslaughter. Defendant forfeited this issue by failing to raise it in the trial court. In any event, there would not have been any error; the involuntary manslaughter statute specifically excludes acts committed while driving a vehicle, making it inapplicable in this case.
Therefore, we affirm.
Statement of Facts and Procedural History
In 2005, defendant was arrested for driving under the influence of alcohol. Defendant pleaded no contest, and was ordered to attend a substance abuse program and Alcoholics Anonymous meetings, which covered the consequences of drinking and driving. Defendant attended eight sessions of the substance abuse class, and admitted he heard about “the dangers of drinking and driving and the reality that drinking and driving kills people.” Defendant told the police that hearing people talk about losing loved ones in drunk driving accidents made him “really focused. He tried really hard to learn from the classes. He tried not to drink and drive. He actually prevented other friends from drinking and driving and had taken their keys to prevent them from drinking and driving and actually called taxis for some [of] his friends as well.” Defendant “realized the severity of drinking and driving.”
In February 2006, on his way to a substance abuse class, defendant was involved in a car collision while under the influence of alcohol. He was on probation and driving with a suspended license at the time. At trial in the present matter, defendant testified that when he was involved in the February 2006 collision, he felt fine to drive, and felt in control of his vehicle; he did not feel drunk, buzzed, or sleepy. His blood alcohol content, however, was.33 percent. Defendant was taken to the hospital after this collision. An arrest warrant was issued; the warrant was outstanding as of February 2008.
On the evening of February 16, 2008, defendant was driving eastbound in the far right lane on Katella Avenue in Los Alamitos. Without signaling, defendant cut across several lanes of traffic to turn left at Siboney Street. Defendant did not use the dedicated left-turn lanes at Katella and Siboney; the left-turn arrow was red. Two cars were approaching the intersection westbound as defendant made the left turn; defendant’s vehicle collided with one of the cars. Defendant’s passenger, Fernando Flores, was killed.
Defendant testified that, before the accident, he had been drinking beer at his aunt’s house, at a friend’s house, and at a bar. After drinking at the bar, he did not feel drunk, although he felt tired. Defendant testified he did not believe he would be in an accident if he drove. He felt “somewhat of a buzz” but did not feel he was not in control when driving the car. Defendant told an investigating police officer that he felt the effects of alcohol that night, and considered calling a taxi, but did not do so. He also told the officer that “he was ‘drunk but not super drunk.’” After the accident, defendant’s blood was drawn; his blood alcohol level was.17 percent.
A jury convicted defendant as charged with second degree murder. The trial court sentenced defendant to 15 years to life in prison, with the possibility of parole. Defendant timely appealed.
Discussion
I.
The trial court did not err by excluding the statistical evidence defendant sought to offer at trial.
Defendant argues the trial court erred by excluding statistical evidence he sought to offer at trial. We review this issue for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230 [trial court’s rulings on relevance and exclusion of evidence under Evidence Code section 352 reviewed for abuse of discretion].)
A. The Issue and the Trial Court’s Ruling
Before trial, defendant’s counsel requested permission to introduce statistics compiled by the California Highway Patrol, comparing arrests for driving under the influence of alcohol with deaths caused by driving under the influence of alcohol. Defendant sought to admit the evidence to prove Flores’s death was not a natural and probable consequence of defendant driving under the influence. The trial court denied defendant’s request. (Because the trial court’s explanation of its reasoning and decision is so complete, we quote it here.)
“What I do find in reviewing really the plethora of case law, with none to the contrary in California, on this issue of-I’m speaking just generally of the dangerousness of drunk driving. Separate and apart from the surrounding circumstances, but [the] California Supreme Court has repeated over and over and over again in many different for[]ms and many different ways... and that language has been echoed in the Vehicle Code by the Legislature that drunk driving is extremely dangerous. Starting with Taylor versus Superior Court [(1979)] 24 Cal.3d 890, Burg versus Municipal Court [(1983)] 35 Cal.3d 2[57]. [¶]... [¶]
“... Our courts have even gone so far as to characterize the argument that drunk driving is not dangerous to human life as nonsense in the words of the appellate court in People versus McCarnes ... [(1986)] 179 Cal.App.3d... 525. [Italics added.]
“I think that there is a fair argument to be made that regardless of the statistics showing the actual DUI fatalities, which this court infers that a reasonable California superior court, reasonable California Legislature and reasonable California appellate court would be aware of the common understanding of the number of drunk drivers generally as opposed to the number of people actually killed by drunk drivers.
“The law in California is settled, notwithstanding the statistics that you cited, Mr. Halpern, that this conduct is extremely dangerous to human life. The courts have repeated that over and over again as has the Legislature.
“My first reason for denying the request to offer this statistical information is that I believe that the issue that the defense is attempting to establish with this is contrary to California law; however, that is not the only reason that I’m denying the request to introduce it. It’s one of several reasons.
“The second reason I’m going to deny your request to offer the evidence, Mr. Halpern, is that, in the court’s view, the two statistics that you are referring to, the number of arrests and the number of deaths, I find to be irrelevant to the issue that you are attempting to establish, which is [a] natural consequence of driving under the influence causing death.
“I say that for several reasons. First of all, as I discussed in... our question and answer yesterday, the number of arrests, it is an amorphous figure as it relates to the number of people who are actually driving under the influence.
“You cited the court or made reference to some studies suggesting that the number of actual drunk drivers is much higher and police only arrest a small percentage of them. On the other hand, the number of people who are arrested may bear some relation to the number of people that are convicted or who are ultimately determined to have been driving under the influence. We don’t know what that relationship or that correlation is.
“The statistic on arrests, in the court’s view, is nothing more than the compilation of 200-odd opinions of law enforcement officers when they detain and investigate someone they suspect to be a drunk driv[er]. On the other end of the spectrum, that number is 786, is equally misleading, in the court’s view, because it only identifies the number of people that are actually killed.
“The number of people who are actually killed, in this court’s view, is a... dramatically different issue from the number of people who are placed at the risk of death by the act of drunk driving, which could be every single person on the road.... So... I find the number of deaths to be equally misleading.
“Finally, and... my main reason for denying your request of offering this evidence is under [section] 352 of the Evidence Code. I find it to be extremely misleading to the jury and, frankly, confusing to the jury on what is the issue in this case.
“The issue in this case is not whether driving under the influence, in a vacuum, is dangerous to human life or is likely to result in death, but whether driving under the influence at this blood alcohol level, under these circumstances, under these conditions, with this kind of driving, this kind of conduct, whether that is likely to cause death.
“And in the court’s view, inviting the jury to focus on two dramatically divergent numbers that... bear little, if any, relation to this issue of the life-threatening risk... draws the jury’s attention and confuses the jury with what the real issue is, which is, again, driving under the influence, at this blood alcohol level, with these conditions, with this kind of behavior, whether this behavior is naturally likely to result in death.
“So, for all of those reasons, and each independent of each other, but primarily relying on [section] 352 of the Evidence Code, I find it has virtually no probative value, has substantial overwhelming potential prejudice in terms of confusing the jury and focusing the jury’s attention away from what the real issue in this case is on this particular element of the offense. For all those reasons I’m going to deny your request to offer the statistics.”
B. Analysis
Implied malice requires proof that a defendant intentionally committed an act, the natural and probable consequence of which is dangerous to human life, with the knowledge the act is dangerous, and while acting with conscious disregard for human life. (People v. Knoller (2007) 41 Cal.4th 139, 152; CALCRIM No. 520.) Whether danger to human life is the natural and probable consequence of an act is determined by applying an objective standard. (People v. Knoller, supra, 41 Cal.4th at p. 157; People v. Nieto Benitez (1992) 4 Cal.4th 91, 111.) Whether a defendant is aware of the danger posed by his or her conduct is determined by a subjective standard. (People v. Dellinger (1989) 49 Cal.3d 1212, 1215; People v. Watson (1981) 30 Cal.3d 290, 296 297.)
The statistics offered by defendant were not relevant to determine his subjective awareness of the dangerousness of his conduct. The offer of proof did not show defendant had any awareness of the statistics before February 16, 2008. To the contrary, there was ample evidence of defendant’s subjective awareness of the dangerousness of driving under the influence, due to his previous no contest plea, the previous collision resulting in injury to him, and his participation in substance abuse classes and Alcoholics Anonymous meetings. Defendant knew driving under the influence was dangerous, and considered but rejected the idea of calling a taxi the night of the accident.
In People v. Marlin (2004) 124 Cal.App.4th 559, 572, the appellate court found no error in the trial court’s acceptance of a guilty plea to a count of second degree murder arising out of a DUI accident, because the defendant’s earlier DUI convictions established his subjective awareness of the dangerousness of his actions: “The [preliminary hearing] transcript shows that defendant had been convicted on numerous occasions over the years for driving under the influence of alcohol. Armed with the knowledge of the dangerousness of his conduct, defendant chose once again to drink and drive. ‘When a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice towards those he ends up killing. There is no requirement the defendant specifically know of the existence of each victim.’ [Citation.] Defendant ‘demonstrated a conscious disregard for all life, fetal or otherwise, and hence is liable for all deaths caused by his conduct.’ [Citation.]”
People v. McCarnes (1986) 179 Cal.App.3d 525, on which the trial court relied in denying defendant’s request to admit the statistical evidence, is directly on point on this issue. There, the defendant argued there was insufficient evidence of implied malice to support a conviction for second degree murder, where two people died as a result of an automobile collision with the defendant, who was intoxicated at the time. (Id. at p. 528.) The defendant’s blood alcohol content was.27 percent, he was driving dangerously, he had four previous convictions for driving under the influence, and he had participated in a DUI education program after two of those convictions. (Id. at pp. 532, 533.) Based on those facts, the appellate court completely rejected the defendant’s argument: “Even if we assume defendant did not realize after his convictions that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his repeated exposure to the driver’s educational program. To argue otherwise is little short of outrageous.” (Id. at p. 532.)
Here, too, defendant had been arrested for DUI, and, in connection with his no contest plea, had attended substance abuse classes. At those classes, he had been told a consequence of DUI was death. Defendant claimed to understand and appreciate the consequences of driving under the influence of alcohol. He nevertheless drove under the influence again, resulting in a collision that required care at a hospital. Finally, after a day of drinking, and having considered and rejected the idea of calling a taxi, defendant drove recklessly, causing an accident that resulted in the death of his passenger.
The trial court did not abuse its discretion in determining the statistics were not admissible as to the objective component of the dangerousness of DUI. The court correctly found that the courts and the Legislature have declared the activity of driving under the influence of alcohol to be an act that is dangerous to human life. “When the Legislature enacted [Penal Code] section 191.5, it stated: ‘The Legislature finds and declares that traffic accidents are the greatest cause of violent death in the United States and that over one-half of the ensuing fatalities are alcohol related.... In view of the severe threat to public safety which is posed by the intoxicated driver, there is a compelling need for more effective methods to identify and penalize those who voluntarily consume alcoholic beverages to the point of legal intoxication and thereafter operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of exerting great force and speed and causing severe damage and death.’ (Stats. 1986, ch. 1106, § 1, pp. 3880 3881.)” (People v. Bennett (1991) 54 Cal.3d 1032, 1038 1039.) “When the Legislature amended Vehicle Code section 40300.5 to allow warrantless arrests for this misdemeanor offense not committed in the presence of the officer, it found and declared ‘that driving while under the influence of alcohol or drugs continues to pose a substantial danger to public health and safety, injuring over 65, 000 people per year and killing an additional 2, 400. Given the severity of the conduct involved, the exception in Section 40300.5 of the Vehicle Code from the general requirements of Section 836 of the Penal Code should be expanded to cover other instances in which the officer has reasonable cause to believe that the person to be arrested had been driving while under the influence of alcohol, drugs, or both.’ (Stats. 1984, ch. 722, § 2, pp. 2646 2647; [citation].)” (People v. Thompson (2006) 38 Cal.4th 811, 821.)
The California Supreme Court has held that driving while under the influence of alcohol is an act dangerous to human life. “The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. [Citations.] As observed in Breithaupt [v.] Abram (1957) 352 U.S. 432..., ‘[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.’ [Citation.] Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. [Citations.] Given this setting, our observation that ‘[d]runken drivers are extremely dangerous people’ [citation] seems almost to understate the horrific risk posed by those who drink and drive.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262; see also People v. McCarnes, supra, 179 Cal.App.3d at p. 533 [argument that danger to human life is not natural consequence of reckless driving with a blood alcohol content of.27 percent “is nonsense, if not an affront to this court”].)
Based on these authorities, we hold the trial court did not err in denying defendant’s request because admission of the statistical evidence would be contrary to California law. Further, the court did not abuse its discretion in finding the statistics irrelevant. The court reasonably determined that a comparison of DUI arrests versus DUI fatalities was irrelevant and misleading.
II.
The trial court did not err by failing to instruct the jury on involuntary manslaughter.
Defendant argues the trial court erred by failing to instruct the jury on the lesser included offense of involuntary manslaughter, under Penal Code section 192, subdivision (b). We review this issue de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
Before trial, defendant filed a written motion asking the court to instruct the jury on the lesser included offense of vehicular manslaughter. (Pen. Code, § 192, subd. (c).) On the record, defendant’s trial counsel changed his argument to request the trial court instruct the jury regarding vehicular manslaughter as a lesser related, rather than a lesser included, offense: “I did some quick research and with regards to lesser related in our thrust now has changed from lesser included to lesser related. We are going to be asking a lesser related instruction be given.” Defendant’s counsel later acknowledged that the California Supreme Court had determined the trial court did not have a sua sponte duty to instruct on lesser related offenses (People v. Birks (1998) 19 Cal.4th 108, 112 113), and asked the prosecution to join defendant’s request for the vehicular manslaughter instruction. The prosecution declined defendant’s invitation, and the trial court denied defendant’s request to instruct the jury on vehicular manslaughter.
Defendant has forfeited his right to challenge on appeal the trial court’s failure to instruct the jury regarding involuntary manslaughter under Penal Code section 192, subdivision (b) in two ways. First, defendant did not argue in the trial court that the jury should be instructed with section 192, subdivision (b), regarding involuntary manslaughter; the argument raised was that the jury should be instructed with section 192, subdivision (c), regarding vehicular manslaughter. Second, defendant’s trial counsel acknowledged that under the facts of this case, manslaughter was not a lesser included offense of murder, but rather a lesser related offense.
A court must instruct the jury sua sponte on any lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A lesser included offense is necessarily included in a greater offense if the greater offense cannot be committed without also committing the lesser. (People v. Birks, supra, 19 Cal.4th at p. 117.) Two tests are used to determine whether an offense is a lesser included offense: the statutory elements test, and the accusatory pleading test. (Ibid.) Manslaughter is generally a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 989 990 (Sanchez), and cases cited therein.) In Sanchez, the Supreme Court held gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5) is not a lesser included offense of murder because “[g]ross vehicular manslaughter while intoxicated requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication. Specifically, section 191.5 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.” (Sanchez, supra, 24 Cal.4th at p. 989.)
As in Sanchez, use of a vehicle is a required element of vehicular manslaughter, which is not an element of murder. Under the statutory elements test, therefore, vehicular manslaughter is not a lesser included offense of murder. Defendant would fare no better under the accusatory pleading test. Count 1 of the information reads in full as follows: “On or about February 16, 2008, in violation of Section 187(a) of the Penal Code (MURDER), a FELONY, IVAN GANDARILLA did unlawfully and with malice aforethought kill Fernando Flores, a human being.” Defendant actually concedes in his opening brief on appeal that the rule of Sanchez applies equally to Penal Code section 192, subdivision (c) as to section 191.5.
Penal Code section 192, subdivision (b), on which defendant relies on appeal, specifically excludes homicides committed with the use of a motor vehicle: “Involuntary [manslaughter occurs] in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.” (Pen. Code, § 192, subd. (b), italics added.) Despite this clear language, and without any case authority or legislative history, defendant argues on appeal that involuntary manslaughter under section 192, subdivision (b) is a lesser included offense of second degree murder. We reject defendant’s argument.
Defendant contends that if the prosecution charges only murder in a case involving death occurring due to a defendant’s driving under the influence, an absurd result might occur, namely, that the jury cannot return a manslaughter verdict. But if the prosecution charges a defendant only with murder, and the jury determines that implied malice has not been established, the result is not “absurd”-the result is an acquittal on the sole charge of murder. If the prosecution makes this election, it must accept such a verdict from the jury.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.