Opinion
G061852
07-24-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUADALUPE SALASMARIA, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Supervising Deputy Attorney General, Andrew Mestman and Jon S. Tangonan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 20NF1299 Sheila F. Hanson, Judge. Affirmed and remanded with directions.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Supervising Deputy Attorney General, Andrew Mestman and Jon S. Tangonan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Jose Guadalupe Salasmaria was convicted by a jury of two counts of murder (Pen. Code, § 187, subd. (a) ; counts 1 and 2), one count of causing bodily injury while driving under the influence (Veh. Code, § 23153, subd. (a); count 3), one count of causing bodily injury while driving under the influence of alcohol with a blood alcohol content of .08% or more (Veh. Code, § 23153, subd. (b); count 4), and one count of causing bodily injury while driving under the influence with a prior conviction (Veh. Code, § 23153, subd. (g); count 5). The jury also found Salasmaria personally inflicted great bodily injury during the commission of the offenses in counts 3 through 5 and he had suffered a prior driving under the influence (DUI) conviction in 2012.
All further statutory references are to the Penal Code unless otherwise indicated.
Salasmaria argues the trial court erred in refusing to instruct the jury that gross vehicular manslaughter while intoxicated is a necessarily lesser included offense of implied malice murder and prohibiting his counsel from discussing the uncharged lesser related offense of gross vehicular manslaughter while intoxicated during closing argument. We reject these arguments and affirm the judgment.
Salasmaria also contends the minute order for his August 26, 2022, sentencing hearing and the abstract of judgment must be corrected to conform with the oral pronouncement of the trial court in imposing a concurrent sentence on count 3. We agree and remand to the trial court to prepare an amended minute order regarding his sentencing and an amended abstract of judgment.
FACTS
At approximately 8:21 p.m. on May 23, 2020, Anaheim Police Department officers responded to a car collision with injuries at the intersection of La Palma Avenue and Olive Street in the city of Anaheim. The intersection is controlled by traffic signals. The speed limit on La Palma Avenue is 35 miles per hour (mph), and the speed limit on Olive Street is 25 mph.
Responding officers observed Salasmaria's vehicle on the sidewalk of the south side of La Palma Avenue and another on its side on the north side of the street facing westbound (vehicle two). Salasmaria was "sitting on the curb with a bloody face" and "blood all over" his shirt. Officers found two passengers inside vehicle two. The driver, George Anthony Moreno, who had not been wearing a seat belt, was ejected from the car, and died at the scene. Ruben Cuevas, one of the passengers in vehicle two later died at the hospital due to injuries sustained in the crash. Ramon C.V. was the only surviving passenger in vehicle two and he suffered serious physical injuries.
Surveillance video of the collision was shown to the jury. The video showed Salasmaria entered the intersection against a red light and collided into the driver's side of vehicle two, causing it to flip over. Data pulled from Salasmaria's car indicated his car was traveling at approximately 75 mph five seconds before the collision, and he did not activate his brakes until one second before impact.
Officer John Roman spoke with Salasmaria at the scene, noting he "had a strong odor of an alcoholic beverage on his breath and his eyes were red." Salasmaria indicated he left work at 8:30 p.m. and was headed home. He told Roman he had "one beer during his lunch break and it was hours ago"; he denied having anything to drink later. Salasmaria stated he takes "medical marijuana" and "smoked a bowl" at 9:00 a.m. Salasmaria initially told Roman he was driving northbound at Olive Street and had stopped at the intersection. Salasmaria indicated the traffic light was yellow and he made a right-hand turn at 40 mph onto eastbound La Palma Avenue. He told Roman he saw the other vehicle and it "smash[ed] into him." Later in his interview, Salasmaria said "he should have stopped" and that the other vehicle was going "'over 60, just like [him].'"
About 9:48 p.m. on May 23, 2020, Officer Anthony Sanchez interviewed Salasmaria at the hospital. Sanchez noticed Salasmaria's "eyes were bloodshot, red, droopy, watery," and Sanchez "could smell alcohol coming from [Salasmaria's] person and his breath." Sanchez also noted Salasmaria's "speech appeared to be slurred, mumbled, slightly soft and quiet." Salasmaria admitted he was driving and told Sanchez "he had smoked one cigarette of marijuana" at 5:00 p.m. that day but did not "feel the effects." Salasmaria also stated he had consumed "five to six beers, . . ., 12-ounce cans" at "his place of employment with four coworkers," but he was not feeling the effects of the alcohol. As for the collision, Salasmaria told Sanchez he had a green light and "somebody else ran the red." Salasmaria estimated his speed to be about "50 to 60 miles an hour" and the other driver's to be the same. Based on Sanchez's training and experience, he opined Salasmaria "was intoxicated, . . ., while operating a motor vehicle." Two blood samples were taken from Salasmaria that evening, one by the hospital nurse at 9:18 p.m. and the second by a forensic phlebotomist at 11:08 p.m.
Salasmaria told another officer, who later interviewed him at the hospital, he shared "two or three bowls of marijuana from a pipe," he and his coworkers passed around after work, sometime between 4:00 p.m. and 8:00 p.m.
In a subsequent interview at the hospital, Salasmaria told a different officer he had "four tall cans of" beer. He indicated "he had one beer after 4 [p.m.], but he had two in the last six hours."
Around 11:00 p.m., Officer Matthew Ellis, a drug recognition expert, contacted Salasmaria at the hospital. Ellis observed Salasmaria to have "bloodshot and watery eyes" and an "odor of alcohol" as well as a tongue with "green coating on it and . . . a brown area on it." Salasmaria's tongue also had "heat bumps at the back" of it. Ellis attempted to complete all 12 parts of a drug recognition evaluation on Salasmaria, but there were limitations because Salasmaria was in a hospital bed. Based on the parts of the evaluation Ellis could complete, as well as Ellis's observations and investigation into the accident, Ellis opined Salasmaria was "under the combined influence of alcohol and cannabis" which "impaired his ability to safely drive a vehicle."
On May 25, 2020, Officer Nathan Fay conducted a search of Salasmaria's vehicle at the tow lot. Inside the vehicle, Fay found two unopened "24- or 25-ounce" cans of beer, and "pieces of marijuana in the cup holders" and center console. Fay also estimated there were "maybe" "a hundred" opened beer cans, some crushed and some not, in the third row seat of the vehicle.
Orange County Crime Lab (OCCL) Supervising Forensic Scientist Valera Horton tested the first blood sample taken from Salasmaria at 9:18 p.m. The sample indicated Salasmaria's blood alcohol content (BAC) was 0.297. Using retrograde extrapolation, Horton opined the BAC was .31 at 8:21 p.m., when the accident occurred. Horton's calculation was based on an assumption the "individual was post-peak or in their elimination phase at 8:21 p.m. . . ." and an elimination rate of .015 percent.
The reporter's transcript contains a discrepancy as it reports the value was 0.0297, rather than 0.297. Based on the expert's entire testimony and later calculations, the value was 0.297, rather than .0297, as Salasmaria acknowledges in his opening brief.
OCCL Forensic Scientist Kelly Brown tested Salasmaria's second blood sample, which was taken at 11:08 p.m. This sample indicated Salasmaria's BAC was .257. Through retrograde extrapolation, Brown opined the BAC was "about a .29 to a .30 at 8:21 p.m." This calculation assumed the individual was "post-peak" with an elimination rate of .015 per hour.
OCCL Forensic Scientist Fernando Manaloto stated a person who was similar in height and weight to Salasmaria would have had "the equivalent of 16 to 17 standard drinks" in their system for their BAC to be .297 at 9:18 p.m. Manaloto defined a "standard drink" as a variety of alcoholic beverages all containing "the same amount of pure ethanol or drinking alcohol." "[T]hat would be 12 ounces of your 4 percent beer, 4 ounces of your 12 percent wine, or one and a quarter ounces of your 40 percent or 80 proof liquor."
Manaloto performed toxicological testing on Salasmaria's second blood sample taken at 11:08 p.m. This sample tested positive for various levels of cannabinoids, specifically, THC, Hydroxy THC, and Carboxy THC. THC is "the primary psychoactive drug present in the marijuana plant," Hydroxy THC "is a metabolite of the parent THC," and Carboxy THC "is another metabolite, but this is an inactive form" that "does not have any effects in the system." Based on Manaloto's training and experience, one can expect the active metabolites found in marijuana to be detectable in the blood "under six hours" from use. Signs of recent marijuana ingestion, according to Manaloto, are a "thick, green coating on the tongue with a brown spot and heat bumps at the back of the tongue." Given a hypothetical that mirrored the evidence presented in Salasmaria's case, Manaloto opined the individual in the hypothetical was "impaired by the combined effects of alcohol and marijuana."
The trial court took judicial notice of the court records related to Salasmaria's prior DUI conviction. When Salasmaria suffered the conviction in April 2012, he attended a required victim impact panel class provided by the Southern California Office of Mothers Against Drunk Driving Program. During this class, attendees are provided "the Watson advisement." According to the program's director, attendees "know that if once receiving this education they choose to drink and drive again and a result of that driving someone is killed, they could be charged with murder."
A Watson advisement informs a defendant convicted of driving under the influence that if he or she continues to drive under the influence of alcohol, drugs, or both, and as a result of that driving a person is killed, the defendant can be charged with murder. (Veh. Code, § 23593; People v. Watson (1981) 30 Cal.3d 290.)
The prosecution charged Salasmaria with two counts of murder (§ 187, sub. (a); counts 1 and 2), one count of causing bodily injury while DUI (Veh. Code, § 23153, sub. (b); count 3), one count of causing bodily injury while DUI with a blood alcohol content of .08% or more (Veh. Code, § 23153, subd. (a); count 4), and one count of causing bodily injury while DUI with a prior conviction (Veh. Code, § 23153, subd. (g); count 5). Enhancements were also alleged as to counts 3 through 5 for personally inflicting great bodily injury (§ 12022.7, subd. (a)).
The jury found Salasmaria guilty on all counts, found the great bodily injury enhancements to be true, and found he had a prior DUI conviction. The trial court sentenced Salasmaria to a total term of 35 years to life, consisting of two consecutive sentences of 15 years to life on counts 1 and 2 and an additional concurrent sentence of two years with a three-year great bodily injury enhancement imposed on count 3. The terms for counts 4 and 5 were imposed concurrently and stayed pursuant to section 654.
DISCUSSION
I. FAILURE TO INSTRUCT JURY ON LESSER INCLUDED OFFENSE
Salasmaria argues his murder convictions should be reversed because gross vehicular manslaughter while intoxicated is a necessarily lesser included offense of implied malice murder and the court erred by refusing to instruct the jury on this offense. We disagree.
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.) "An appellate court applies the independent or de novo standard of review to the failure by the trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
As Salasmaria concedes, our Supreme Court has rejected the argument gross vehicular manslaughter while intoxicated under section 191.5 is a lesser included offense of second degree murder. (People v. Sanchez (2001) 24 Cal.4th 983, 989 (Sanchez)), overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) Sanchez noted the statutory elements of murder do not include all the statutory elements of section 191.5 because the manslaughter charge "requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication." (Sanchez, supra, 24 Cal.4th at p. 989; see also People v. Bettasso (2020) 49 Cal.App.5th 1050, 1058 [holding vehicular manslaughter under § 192, subd. (c) is also not a lesser included offense of second degree murder].) We are bound by the holdings of our Supreme Court. (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Salasmaria argues that even if Sanchez held gross vehicular manslaughter while intoxicated is not a lesser included offense under the elements test, it is a lesser included offense when applying the accusatory pleading test. "'Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.'" (People v. Shockley (2013) 58 Cal.4th 400, 404.) However, when "the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense." (People v. Robinson (2016) 63 Cal.4th 200, 207.)
Here, the information does not refer to any particular facts of the charged crimes but rather repeats the statutory definition of murder:
"COUNT 1: On or about May 23, 2020, in violation of Section 187(a) of the Penal Code (MURDER), a FELONY, [Salasmaria] did unlawfully and with malice aforethought kill Ruben C., a human being.
"COUNT 2: On or about May 23, 2020, in violation of Section 187(a) of the Penal Code (MURDER), a FELONY, [Salasmaria] did unlawfully and with malice aforethought kill George M., a human being."
Consequently, in determining whether gross vehicular manslaughter while intoxicated is a lesser included offense of murder, we apply the statutory elements test and, as discussed ante, Sanchez held a charge of murder does not include all the elements of gross vehicular manslaughter while intoxicated.
Salasmaria further argues gross vehicular manslaughter while intoxicated is a lesser included offense when applying the "expanded" accusatory pleading test employed by People v. Ortega (2015) 240 Cal.App.4th 956, 967 (Ortega). The expanded accusatory pleading test applied in Ortega considered not just the facts presented in the information but also those alleged at the preliminary hearing in determining whether a crime was a lesser included offense. (Ibid.) In Ortega, the prosecution presented evidence of digital penetration at the preliminary hearing but then filed an information charging sexual penetration by force. (Id. at pp. 960-961, 967.) On appeal, the defendant argued the trial court erred in failing to instruct the jury on sexual battery as a lesser included offense of forcible sexual penetration. The court held, given the facts alleged at the preliminary hearing, "under an expanded accusatory pleading test," sexual battery was a lesser included offense of forcible sexual penetration. (Id. at p. 967.)
Every published opinion considering this issue has rejected Ortega's expanded accusatory pleading test. (See, e.g., People v. Alvarez (2019) 32 Cal.App.5th 781, 786-787; People v. Munoz (2019) 31 Cal.App.5th 143, 157-158; People v. Macias (2018) 26 Cal.App.5th 957, 964.) These courts all declined to follow Ortega. The courts in Munoz and Macias, declined to do so because Ortega is inconsistent with Supreme Court precedent in People v. Montoya (2004) 33 Cal.4th 1031 (Montoya). As explained in Montoya: "Consistent with the primary function of the accusatory pleading test-to determine whether a defendant is entitled to instruction on a lesser uncharged offense-we consider only the pleading for the greater offense." (Id. at p. 1036, fn. omitted.) In fact, Montoya specifically disapproved a case that had considered evidence from the preliminary hearing and trial in applying the accusatory pleading test. (Id. at p. 1036, fn. 4 [disapproving People v. Rush (1993) 16 Cal.App.4th 20, 27].) We agree with our fellow courts in applying the accusatory pleading test as set forth in Montoya, and decline Salasmaria's request to adopt Ortega's expanded accusatory pleading test. Accordingly, we reject Salasmaria's argument the trial court should have instructed the jury on gross vehicular manslaughter while intoxicated as a lesser included offense of second degree murder.
In Sanchez, the California Supreme Court stated its decision did "not turn on a distinction between vehicular manslaughter while intoxicated as defined by section 192 and gross vehicular manslaughter while intoxicated as defined by section 191.5." (Sanchez, supra, 24 Cal.4th at p. 992, fn. 4.) To the extent Salasmaria is arguing the court should have instructed the jury on gross vehicular manslaughter while intoxicated (§ 191.5), vehicular manslaughter while intoxicated, or vehicular manslaughter (§ 192, subd. (c)), we disagree. For the reasons discussed above, these offenses are not lesser included offenses of implied malice murder.
II. CLOSING ARGUMENT REGARDING UNCHARGED OFFENSE
Salasmaria contends the trial court abused its discretion by prohibiting defense counsel from arguing to the jury he was guilty of the uncharged offense of gross vehicular manslaughter while intoxicated. We disagree.
"We review a trial court's decision to limit defense counsel['s] closing argument for abuse of discretion." (People v. Simon (2016) 1 Cal.5th 98, 147 (Simon).) There is no abuse of discretion where the trial court's limitation on defense counsel's argument does not prevent the defendant from conveying his or her primary defense. (Id. at p. 149.) "Trial courts have broad discretion to control the duration and scope of closing arguments." (Id. at p. 147.) Additionally, the trial court is required "to control all proceedings during the trial and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (§ 1044.)
As discussed above, gross vehicular manslaughter while intoxicated is not a lesser included offense of second degree murder. (Sanchez, supra, 24 Cal.4th at p. 989.) Rather, it is a lesser related offense for which Salasmaria did not have a right to instruction. "A defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties." (People v. Jennings (2010) 50 Cal.4th 616, 668.) Here, the prosecution did not agree to the court instructing on lesser related offenses to second degree murder.
Permitting defense counsel to argue the elements of the uncharged crime of gross vehicular manslaughter while intoxicated could reasonably have confused or misled the jury. Therefore, the court's decision to limit defense counsel's argument was not an abuse of discretion but rather a reasonable choice to restrict argument to relevant matters. (See People v. Valentine (2006) 143 Cal.App.4th 1383, 1387 ["It 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."].) Rather, it is "ordinarily the prosecution's function to select and propose the charges." (People v. Birks (1998) 19 Cal.4th 108, 136.)
Moreover, defense counsel was not precluded from arguing during closing the prosecution had failed to prove its case beyond a reasonable doubt and, more specifically, had not demonstrated Salasmaria acted with the requisite intent necessary for implied malice murder. In rejecting Salasmaria's request, the trial court also noted the defense was free to argue to the jury it was the prosecution's choice to charge Salasmaria solely with murder. Thus, the trial court's ruling preventing defense counsel from discussing the elements of the uncharged crime of gross vehicular manslaughter while intoxicated did not preclude Salasmaria from conveying his main defense that the prosecution had failed to prove Salasmaria was guilty of implied malice murder. (Simon, supra, 1 Cal.5th at p. 147; People v. Marshall (1996) 13 Cal.4th 799, 854.) Accordingly, the trial court did not 7 abuse its discretion, and we reject this claim of error.
To the extent Salasmaria is also arguing the court abused its discretion by precluding him from discussing the offense of gross vehicular manslaughter (§ 192), we reject this claim for the same reasons.
III. CLERICAL ERRORS IN SENTENCING
At the sentencing hearing held on August 26, 2022, the trial court imposed two consecutive sentences of 15 years to life on counts 1 and 2. The trial court imposed a concurrent midterm sentence of two years on count 3 plus a three-year enhancement pursuant to section 12022.7. At the sentencing hearing, the court stated, "I have considered whether or not to impose consecutive or concurrent sentences. I am mindful that this is a separate victim. I'm also mindful of the lengthy sentence imposed on counts 1 and 2. The court has made a decision to sentence as to that principle base term concurrent to the indeterminate life term." The court also imposed concurrent terms on counts 4 and 5 but stayed them pursuant to section 654. Despite the trial court's oral statement, both the minute order and abstract of judgment incorrectly recorded count 3 as being imposed consecutively. We agree with the parties the sentencing minute order and the abstract of judgment must be corrected to accurately reflect the court's oral pronouncement of judgment of a concurrent term on count 3 and direct the trial court to correct these documents accordingly. (People v. Jones (2012) 54 Cal.4th 1, 89 [appellate court has inherent power to order correction of errors in the abstract of judgment]; People v. Mitchell (2001) 26 Cal.4th 181, 185187 [same]; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 ["The record of the oral pronouncement of the court controls over the clerk's minute order."].)
DISPOSITION
The trial court is directed to prepare and file amended minutes of the August 26, 2022, sentencing hearing and an amended abstract of judgment reflecting a concurrent sentence on count 3. The trial court is further directed to forward certified copies of these documents to the Department of Corrections and Rehabilitation.
The judgment is otherwise affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., DELANEY, J.