Opinion
D070413
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. DARIUS WATKINS, Defendant and Appellant.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE341351) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed. Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
After an evening of drinking, the Osuna brothers (Jorge "George," Christopher, and Joseph) went to a McDonald's drive-through around 2:30 a.m. Defendant Darius Watkins and a group of his friends convened at the same McDonald's around the same time after an evening on a "party bus." When a member of Watkins's group began behaving erratically, the Osuna brothers got out of their car and a brief physical altercation between the groups ensued. When the altercation ended, the Osunas sped off to Christopher's nearby condo. Watkins followed the Osunas alone, returned to the McDonald's two minutes later, then drove with other members of his group back to Christopher's condo complex. It is undisputed that Watkins then struck George with his car, inflicting fatal injuries. Watkins fled the scene.
When Watkins turned himself in later that day, he told detectives he had followed the Osunas to get their license plate number so he could report them to the police, but the Osunas (on foot) cornered him in a dead-end driveway. Watkins said he did not intend to hit George, but had no choice but to drive through the brothers to escape.
Watkins was charged with one count of murder (Pen. Code, § 187, subd. (a)), with a deadly-weapon enhancement allegation (§ 12022, subd. (b)(1)). The jury was instructed on second degree murder, voluntary manslaughter (imperfect self-defense), accident, and self-defense. The jury found him guilty of second degree murder and found the enhancement allegation to be true.
Undesignated statutory references are to the Penal Code.
On appeal, Watkins contends the trial court erred by failing to also instruct the jury regarding involuntary manslaughter and the heat-of-passion theory of voluntary manslaughter. He also contends the trial court erred by excluding evidence of prior incidents during which George and Christopher allegedly became belligerent when drinking alcohol together. We find no error, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
On June 15, 2014, brothers George, Christopher, and Joseph Osuna (then ages 26, 25, and 17, respectively) spent the day at a cousin's house watching sports on television. According to Joseph, each brother drank four or five beers; Christopher said they drank none.
After dark, the brothers went to the condo where Christopher and his girlfriend, Ashley, lived. There, the brothers each drank four or five beers, while Ashley had about three. They also attempted a "power hour"—drinking one ounce of beer every minute for 60 minutes. About half past midnight, George posted on his Facebook page an image of a clock and the words, "Dammit we faded."
The brothers and Ashley got into her two-door Mini Cooper and drove to a hookah lounge in a shopping center about two blocks from the condo. There, they drank more beer and smoked tobacco until the lounge closed around 2:00 a.m.
Christopher testified he and George drank one or two beers, while Joseph and Ashley drank none. Joseph testified he and his brothers each drank about three beers. Ashley testified she drank three or four beers, and the brothers all drank more than her.
When the hookah lounge closed, the brothers and Ashley got back in the Mini Cooper and drove to a McDonald's restaurant in the same shopping center. They entered the drive-through lane, ordered their food, and proceeded to the second of two drive-through windows to complete their transaction.
Meanwhile, 19-year-old Watkins and a group of his friends—all younger than 21—were preparing for an evening on a "party bus." A female member of the group, K.J., testified that Watkins and some of his friends arrived with three "handled" bottles of vodka, which they drank from before and after boarding the bus. K.J. said Watkins was among those who drank the vodka. After several hours on the party bus, Watkins's group met up in the McDonald's parking lot. Watkins drove his Nissan Versa into the drive-through lane.
A photograph admitted as a trial exhibit shows defendant and several of his friends posing with one of the vodka bottles before getting on the bus.
As the Osunas and Ashley were at the second drive-through window, Watkins's friend and passenger, Tevin Adkins, got out of the car and began acting erratically, yelling and banging on the first drive-through window, which was not in use. According to Joseph and Ashley, Adkins then began shaking their Mini Cooper. The Osuna brothers—each over six feet tall and weighing between 220 and 300 pounds—got out of their car and confronted the shorter, "slender" Adkins.
After exchanging words, the altercation became physical. Adkins and one of the Osuna brothers pushed each other. George put Adkins in a headlock, and Christopher punched him in the side two or three times. When Adkins fell to the ground, Christopher kicked him in the torso. Adkins's friends approached from the parking lot, but Joseph fended off the group. When Watkins approached to tell the Osunas that his group did not want any trouble, someone punched him in the face, knocking him to the ground. K.J. testified she also approached the scuffle and shoved someone, who then shoved her back and knocked her to the ground. When the McDonald's manager threatened to call the police, the Osunas got back into the Mini Cooper, which Ashley drove away.
As Ashley and the Osunas headed toward Ashley and Christopher's condo, Christopher told her to drive fast and run stop signs, in case anyone was following them. Christopher and Joseph denied at trial that they were laughing about the altercation during the car ride. However, Ashley testified the brothers were laughing and that George was "bragging that he hit [a] guy in the face."
Surveillance footage of the McDonald's drive-through shows Watkins followed the Mini Cooper in his car and returned two minutes later. It was undisputed at trial that Watkins initially followed the Mini Cooper alone, then returned to McDonald's. Watkins and a friend then drove back to the condo complex in Watkins's Nissan, accompanied by other friends in a Honda being driven by Watkins's friend Genaro Suarez.
The Osuna brothers and Ashley were unaware they had been followed. Ashley parked her car in the attached garage, where she and Christopher stayed so they could discuss what had just happened. George and Joseph went up the exterior stairway to the upstairs condo unit, but had to wait on the front patio because they did not have a key.
George and Joseph then heard engines revving and tires screeching. They saw Watkins's Nissan and Suarez's Honda at the entrance to the condo complex, north of their building and garage, facing south. Joseph testified he saw someone outside one of the cars and heard someone yell to one of the passengers to grab the "nina," which Joseph understood to be a slang reference to a nine millimeter gun. Joseph and George ran down the stairs to warn Christopher. Christopher said, "now it's really on," and told Ashley to go upstairs.
Ashley went about halfway up the stairs, and stopped. From there, she had trouble seeing the ensuing events leading up to the collision.
According to Joseph, as the brothers stood outside the garage, Suarez drove southbound toward them at a high rate of speed, appearing to aim for George before swerving toward Joseph. The brothers moved out of the way. Suarez drove to the end of the driveway, which appeared to be a dead-end. Watkins then sped southbound in his Nissan, following Suarez's trajectory. Skid marks in the dead-end area indicate one of the cars was traveling approximately 21 miles per hour (mph) before rapidly braking.
South of Christopher and Ashley's condo building, but north of the dead-end, there is a "T" intersection that loops around to the condo complex's entrance. There are several true dead-ends in the complex, and it would not necessarily have been apparent that the T-intersection led out of the complex.
Watkins turned his car around and pointed northbound toward the Osunas. All three brothers were on the left side of the driveway, within two or three feet of the building. The driveway is approximately 25 feet wide at this point, and Watkins's Nissan measured about five and one-half feet wide at its widest point. An accident reconstructionist testified there is no possible configuration whereby three men could block the driveway in a way that would not leave a gap wide enough to accommodate the width of Watkins's Nissan.
George and Christopher were standing in front of Christopher's garage, just north of the exterior stairway to his condo unit; Joseph was standing in front of a garage immediately south of the stairway. Christopher took out his phone to attempt to video record the incident, but was unable to. Christopher and Joseph testified they were unarmed, were not blocking the road, and were not advancing on Watkins's car. Ashley corroborated this, and the accident reconstructionist testified there was no physical evidence indicating the brothers were blocking the driveway.
Data from the event data recorder (or "black box") in Watkins's Nissan captured his next moves in one-second increments beginning seven seconds before the collision with George, and ending six seconds after. Seven seconds before the collision, Watkins was about 249 feet south of the eventual point of impact and already traveling 12 mph. He applied throttle all the way to the point of impact, peaking at 100 percent throttle three seconds before impact. Upon impact, Watkins was traveling 34 mph, and the Nissan's engine was revving at 6,059 revolutions per minute. An accident reconstructionist opined this was a "very excessive speed" and was "very unsafe" under the circumstances. Watkins steered toward the left (the side of the driveway the Osunas were on) until three seconds before the collision, then steered toward the right for the next three seconds. The black box data showed that Watkins never applied the brakes before the collision; he only did so afterwards.
Watkins's throttle percentages in the seconds leading up to the collision were 23 percent, 69 percent, 63 percent, 67 percent, 100 percent, 95 percent, and 39 percent. His throttle percentages in the seconds following the collision were 0 percent, 0 percent, 0 percent, 0 percent, 0 percent, and 17 percent.
Christopher and Joseph were able to jump out of the way of Watkins's approaching car; George was not. Watkins's car passed over a speed bump, rubbed against the red curb just south of Christopher's garage, hit George, and then hit and ruptured a water spigot attached to the garage wall. George's leg was crushed between the Nissan and the garage, causing a partial amputation with exposed bone. His head, body, and arm also sustained severe trauma when they impacted Watkins's car. Watkins fled the scene.
Christopher ran after Watkins's car, but was unable to catch up. After seeing that George was unresponsive, Christopher then ran toward Suarez's Honda, which was reversing out of the dead-end. Christopher banged on the car and eventually punched through the driver's side window, but Suarez managed to drive away. Christopher returned to George's location, where he applied a makeshift tourniquet to George's leg and yelled for someone to call 911. Neighbors who had been awakened by the commotion began coming outside and calling 911. Emergency responders arrived within a few minutes and transported George to the hospital.
Eight neighbors testified at trial, providing varying accounts of their observations that night. We omit the details of their testimony because they are unnecessary to the resolution of the issues before us.
Christopher stayed at the scene for about 30 minutes after George was taken to the hospital. He admitted at trial that he initially told several emergency responders that Watkins's car had reversed into George. Joseph similarly told a first responder that Watkins had reversed and collided with George, but Joseph clarified at trial that he meant the car had reversed direction by performing a three-point turn.
Watkins abandoned his damaged car in front of a friend's house a few blocks from the crime scene. Later that day, Watkins, accompanied by his mother and his attorney, turned himself in at a sheriff's substation. Watkins waived his Miranda rights and gave an interview to detectives, which was recorded and played for the jury. We discuss the substance of his interview in the Defense Evidence section of our factual summary. At the end of the interview, the detectives arrested Watkins for assault with a deadly weapon.
Two days after the incident, George died at the hospital. The Chief Medical Examiner for San Diego County conducted an autopsy and determined George's cause of death was "multiple system blunt force injuries" sustained during the collision with Watkins's car.
Defense Evidence
Watkins's primary defense theory was that the collision was an accident or, in the alternative, that he was acting in self-defense.
Watkins's Interview
Watkins told the detectives his version of events. He and about five friends spent the evening on a party bus with a larger group of people. He claimed no "drinking" or "weed smokin" was involved. After the party bus, Watkins and four members of his original group (plus K.J., whom they encountered on the bus) regrouped at the McDonald's. As Watkins drove himself and Adkins through the drive-through, the rest of the group waited in Suarez's car nearby in the parking lot. Watkins was on his cell phone, so he was not paying attention when Adkins got out of the car.
Watkins heard the occupants of the car ahead of his exchanging words with Adkins. Then, four "big," "buff," six-foot-tall "Mexican" men got out of the car and surrounded Adkins. Two of the men were harassing and hitting Adkins, "saying some gang that they were claiming." When Watkins approached to break up the fight, one of the men punched him in the face, dazing him and knocking him to the ground. When a McDonald's employee said she was going to call the police, the other group got back in their car and drove off.
Watkins "took it upon [him]self" to follow the other car to get their license plate so they would not "get away without any repercussion." He denied following the men for "revenge or retaliation or anything [of] that nature." Watkins's friend Nathan rode in Watkins's car; Suarez and the two remaining male friends followed in Suarez's car "because they . . . didn't want anything further to happen."
Watkins followed the group to an apartment complex he had never been to before. He did not see exactly where the car went, so he drove slowly through the complex and saw that the car had pulled into a garage. As Watkins passed the garage, three of the men exited the garage and walked toward him, one holding a camera. Watkins kept driving, but hit a dead-end. As he turned his car around, the engine revved a little as he changed gears with his stick-shift. This was the only time he revved the engine.
As Watkins was turning around, the men were already more than halfway down the driveway, spread out "to corner [him] in." Watkins "got a very bad vibe" as the men approached—he was "very frightened" and "super scared" because the men were all bigger than him, had been hostile from the "get go" at McDonald's, and had just beaten up Adkins. Nathan said, "They're coming . . . to get us, . . . what are you gonna do?"
Watkins viewed his options as either "get out and get beat up by three Mexicans or [his car] goes through one of them." Believing he was "fending for [his] life," Watkins "just went." He "didn't floor it," but kept the car in first gear, trying not to hit anyone. Watkins initially said he was driving between 10 and 15 mph, but later said he was going only three to five mph.
Watkins tried to split the gap between two men who were toward one side of the driveway and the third man who was toward the other, expecting they would exercise "common sense" and move out of the way. But the men "st[ood] their ground," and "the only way" for Watkins to leave "was to obviously hit" one of the men "because he wasn't gonna get out of the way and [Watkins] could tell that . . . ." Watkins "tried to avoid him as much as possible but he got clipped by [Watkins's] car." Watkins kept driving.
Watkins passed Suarez's car on the way out. Suarez hadn't followed Watkins down the driveway because he saw it was a dead-end. As Watkins passed, he told Suarez to meet up at a friend's nearby house. Watkins drove to the friend's house, left his damaged car, and got a ride with Suarez to Adkins's house, where the group spent the night.
Watkins told the detectives he did not want to go back to McDonald's because he was afraid he might encounter the men again. He explained he decided not to call the police right away "[b]ecause [he] knew it was gonna be resolved tomorrow or the following day."
Watkins never got the license number plate number.
Defense Witnesses
A forensic psychologist testified about the "fight-or-flight" phenomenon, under which a person who perceives a threat may experience tunnel vision, tinny hearing, dissociation, numbness to wounds, and memory impairment. The expert opined that a fight-or-flight response could be triggered "[i]f someone is in [a] car and they feel cornered by some stronger people." A "common response" to this stimulus would be to "[hit] the gas pedal."
An accident reconstructionist testified that the positioning of George's body and the speed of Watkins's car (among other things) indicated George must have been at least five feet away from the wall adjacent to the garage when he was struck.
A licensed pharmacist who is also an attorney testified about George's blood alcohol content. A blood sample taken from George at the hospital about five hours after the collision indicated he had a blood alcohol content of 0.186 percent, equivalent to having about 13 or 14 beers in his system. Applying an "average burn-off rate" for the metabolism of alcohol, the expert extrapolated George's blood alcohol content at the time of the collision was "somewhere around 0.261" percent, which is equivalent to having approximately 18 beers in his system. The expert said a person with this level of intoxication would have had "[s]everely impaired" judgment, cognition, senses, spatial awareness, balance, and coordination. The person may also exhibit "inappropriate behavior."
An investigator testified about measurements and observations he made at the crime scene. He noticed that certain vehicles parked in the marked spaces across the driveway from where George was struck narrowed the usable width of the driveway to less than 25 feet. However, the expert acknowledged he did not know whether the parking spaces were occupied at the time of the incident. He also observed that traffic in the condo complex generally drove between 10 and 15 mph, which appeared to him to be "a safe speed."
For example, an SUV parked in one space narrowed the usable width to about 21 feet.
Two law enforcement officers who responded to the scene testified that Christopher told them the subject vehicle reversed into George. A fire captain who responded to the scene testified that one of the victim's brothers "smelled strongly of alcohol" and reported that a car "had run over [George] and then backed over him and took off."
Jury Verdict and Sentence
The court instructed the jury on second degree murder, voluntary manslaughter on an imperfect self-defense theory, accident, and self-defense. After deliberating for about two full days, the jury returned a guilty verdict on the murder count and a true finding on the deadly-weapon enhancement allegation. The trial court sentenced Watkins to 15 years to life on the murder count, plus one consecutive year on the enhancement.
DISCUSSION
I. Manslaughter Instructions
Watkins contends the trial court erred by failing to instruct the jury regarding involuntary and voluntary manslaughter as lesser included offenses of murder. We disagree.
A. Legal Principles Governing Homicide
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice, the mens rea for murder, is a specific intent to kill or a conscious disregard for life. (People v. Rios (2000) 23 Cal.4th 450, 460.) Malice is express when a defendant manifests "a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) Malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows his or her conduct endangers the life of another and who acts with conscious disregard for life. (People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Dellinger (1989) 49 Cal.3d 1212, 1215.)
"Manslaughter is the unlawful killing of a human being without malice." (§ 192, italics added.) There are "three kinds" of manslaughter: voluntary, involuntary, and vehicular. (§ 192, subds. (a)-(c).) Voluntary manslaughter is a homicide committed either with the intent to kill or with conscious disregard for life—that is, with a mens rea that would otherwise constitute malice—but where that would-be malice is "negated" or "mitigated" because the offense was committed in the heat of passion or under the good faith but unreasonable belief in the need to act in self-defense. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers); People v. Blakeley (2000) 23 Cal.4th 82, 87-88.)
Involuntary manslaughter generally is the unlawful killing of a human being without malice (i.e., without an intent to kill and without a conscious disregard for life). (§ 192, subd. (b); CALCRIM No. 580.) Specifically, section 192, subdivision (b) provides the following definition: "Involuntary - [1] in the commission of an unlawful act, not amounting to a felony; or [2] 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." (Italics added.) In addition to the two forms of involuntary manslaughter expressly identified in section 192, subdivision (b), courts have recognized a third "nonstatutory" form of involuntary manslaughter in limited circumstances we discuss below. (See People v. Burroughs (1984) 35 Cal.3d 824, 835 (Burroughs); Brothers, supra, 236 Cal.App.4th at p. 34.)
Vehicular Manslaughter generally consists of five types of offenses, all of which have the following three elements in common: "(1) the unlawful killing of a human being without malice aforethought; (2) while driving a vehicle; and (3) in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act that might produce death in an unlawful manner." (Levenson & Ricciardulli, Cal. Criminal Law (The Rutter Group 2013) § 5:55, p. 5-110, fn. omitted; §§ 192, subd. (c)(1)-(3), 191.5, subd. (a).) The Legislature first specifically addressed vehicular homicides in 1935 in Vehicle Code section 500. (People v. Watson (1981) 30 Cal.3d 290, 298, citing Stats. 1935, ch. 764, p. 2141; see Stats. 1935, ch. 27, p. 173.) In 1941, the Legislature amended that section to provide that "the provisions of the Penal Code, defining involuntary manslaughter, shall not apply to homicide caused by the driving of any vehicle." (Stats. 1941, ch. 279, § 1, at p. 1414; see Watson, at p. 297.) In 1943, the Legislature repealed Vehicle Code section 500, but two years later amended section 192 to add vehicular manslaughter as third kind of manslaughter, and to add a proviso to the end of the definition of involuntary manslaughter reaffirming that the definition "shall not apply to acts committed in the driving of a vehicle." (Pen. Code, § 192, subd. (b); Watson, at pp. 297-298; Stats. 1943, ch. 421, p. 1959, § 1; Stats. 1945, ch. 1006, § 1, pp. 1942-1943.)
Voluntary and involuntary manslaughter are lesser included offenses of murder, but vehicular manslaughter is not. (People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Sanchez (2001) 24 Cal.4th 983, 989). The trial court is obligated to instruct the jury " 'on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' " (People v. Rogers (2006) 39 Cal.4th 826, 866.)
B. Involuntary Manslaughter Instruction
1. Background
Before trial, Watkins requested that the court instruct the jury regarding involuntary manslaughter and vehicular manslaughter. He later withdrew the request regarding vehicular manslaughter, but maintained his request regarding involuntary manslaughter even though defense counsel acknowledged "there is a statute on point." The trial court concluded it was precluded from instructing on involuntary manslaughter based on "[t]he express statement" in section 192, subdivision (b) that it " 'shall not apply to acts committed in the driving of a vehicle.' " Defendant renewed his request regarding involuntary manslaughter during trial, but the court denied the request.
The prosecution did not pursue a vehicular manslaughter theory. There are no issues on appeal regarding vehicular manslaughter.
2. Relevant Legal Principles
Section 192 defines manslaughter as follows:
"Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
"(a) Voluntary—upon a sudden quarrel or heat of passion.
"(b) Involuntary—in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle. [(Italics added.)]
"(c) Vehicular . . . ."
"Our primary objective in interpreting a statute is to determine and give effect to the underlying legislative intent." (People v. Prescott (2013) 213 Cal.App.4th 1473, 1476-1477; see People v. Loeun (1997) 17 Cal.4th 1, 8.) " '[W]e begin with the words of a statute and give these words their ordinary meaning.' " (People v. Sinohui (2002) 28 Cal.4th 205, 211; Loeun, at p. 9.) " 'If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." ' " (Loeun, at p. 9; Prescott at p. 1477 ["our statutory interpretation begins and ends with its plain meaning."]; Sinohui, at p. 211 [" 'If the statutory language is clear and unambiguous, then we need go no further.' "].) " ' "Where the statute is clear, courts will not 'interpret away clear language in favor of an ambiguity that does not exist.' " ' " (Loeun, at p. 9; see Ratzlaf v. United States (1994) 510 U.S. 135, 147-148 ["we do not resort to legislative history to cloud a statutory text that is clear"].) "We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used." (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)
3. Analysis
The Legislature's definition of involuntary manslaughter is clear and unambiguous: it "shall not apply to acts committed in the driving of a vehicle." (§ 192, subd. (b), italics added.) It is undisputed that Watkins's offense was "committed in the driving of a vehicle." (Ibid.) Therefore, by the statute's plain language, Watkins's offense cannot constitute involuntary manslaughter. (§ 192, subd. (b); see 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 262, p. 1086 [§ 192, subd. (b) "makes the ordinary definition of involuntary manslaughter inapplicable to acts committed in driving a vehicle" because subd. (c) "creates a third type of manslaughter, designated 'vehicular.' "].) Because the statute is "clear and unambiguous, . . . we need go no further." (Sinohui, supra, 28 Cal.4th at p. 211.)
Notwithstanding the statute's clear and unambiguous expression of the Legislature's intent that homicides "committed in the driving a vehicle" not constitute involuntary manslaughter (§ 192, subd. (b)), Watkins argues the jury should nonetheless have been instructed on a "nonstatutory" theory of involuntary manslaughter. We disagree. The cases on which Watkins primarily relies concluded that recognizing nonstatutory forms of involuntary manslaughter was consistent with the Legislature's intent of ensuring that unlawful homicides not go unpunished merely because they fell through apparent cracks between the murder and manslaughter statutes. (See Burroughs, supra, 35 Cal.3d 824; Brothers, supra, 236 Cal.App.4th 24.) There are no such cracks here—Watkins's conduct is punishable as murder (and potentially punishable as vehicular manslaughter). His conduct is not punishable as involuntary manslaughter because the Legislature has clearly and unambiguously provided as much since 1941. We will not recognize a nonstatutory form of involuntary manslaughter that is directly at odds with such a clearly expressed legislative intent.
In Burroughs, the defendant, a "self-styled 'healer' " who was not licensed to practice medicine, delivered treatments that caused the death of a young man. (Burroughs, supra, 35 Cal.3d at pp. 826-828.) The defendant was convicted of practicing medicine without a license, and second degree murder on a felony-murder basis (the trial court found that practicing medicine without a license satisfied the inherently-dangerous-felony predicate of the felony-murder rule). (Id. at pp. 826-827.) The Supreme Court disagreed that practicing medicine without a license is inherently dangerous, and reversed the murder conviction. (Id. at pp. 827, 829-833.) To guide the court in the event of retrial, the Supreme Court stated the defendant would be entitled to an instruction on involuntary manslaughter, even though his conduct did not fall squarely within the statutory definition. The court explained the nonstatutory form of involuntary manslaughter was warranted because the defendant's conduct would otherwise not be punishable as any form of homicide—it could not constitute murder because there was no malice or underlying inherently dangerous felony for purposes of the felony-murder rule; it could not constitute voluntary manslaughter because there was no malice to negate by heat of passion or imperfect self-defense; and it could not constitute involuntary manslaughter because the first statutory means applies only to "an unlawful act, not amounting to a felony" (§ 192, subd. (b), italics added), and the second statutory means applies only to "the commission of a lawful act which might produce death" (ibid., italics added). To avoid this "anomalous" result, the Burroughs court fell back on section 192's " 'basic definition' " of manslaughter—" 'the unlawful killing of a human being, without malice' "—to conclude the Legislature intended that someone in the defendant's circumstance "ought to be punishable under section 192." (Burroughs, at p. 836.)
In Brothers, the court recognized a nonstatutory form of involuntary manslaughter to address another anomaly that resulted from the evolution of the felonymurder rule. (Brothers, supra, 236 Cal.App.4th at p. 32.) The defendant was charged with murder after she and others fatally beat a man they learned was allegedly molesting the defendant's granddaughter and another minor. (Id. at p. 27.) The jury acquitted the defendant of murder, but found her guilty of voluntary manslaughter as a lesser included offense. (Id. at p. 29.) The Court of Appeal affirmed the conviction, but observed that the defendant would have been entitled to an instruction on nonstatutory involuntary manslaughter had there not been substantial evidence of malice. (Id. at pp. 3035.) The court recognized a nonstatutory form of involuntary manslaughter to fill the void resulting from a nonmalicious assaultive felony that results in death—it could not constitute murder due to the absence of malice and the unavailability of the felonymurder rule in the case of assaultive felonies; it could not constitute voluntary manslaughter due to the absence of malice (by negation or mitigation); and it could not constitute statutory involuntary manslaughter because the offense was neither "an unlawful act, not amounting to a felony" (§ 192, subd. (b), italics added), nor "a lawful act which might produce death" (ibid., italics added). (Brothers, at pp. 3034.)
C. Voluntary Manslaughter
Watkins contends the trial court also erred by failing to instruct the jury regarding the heat-of-passion theory of voluntary manslaughter. The Attorney General maintains that because Watkins objected to this instruction below for tactical reasons, the invited error doctrine bars his challenge on appeal. We agree with the Attorney General.
1. Background
During argument on motions in limine, the trial court told counsel that it was considering instructing the jury regarding voluntary manslaughter on both the imperfect-self-defense and heat-of-passion theories.
On the fourth morning of the prosecution's case-in-chief, the trial court raised the issue of jury instructions regarding homicide and directed counsel to read certain cases "revolving around the interplay between accident, heat of passion, and involuntary manslaughter." The court admonished counsel: "The reason I want to articulate this is so that you have time this weekend to really think about these instructions, so we don't walk into a land mine." When defense counsel indicated she was "not sure" whether she wanted the court to instruct the jury regarding heat-of-passion manslaughter, the court warned, "You and I are going to have to have a dialogue on the record as to why I wouldn't give the vol[untary manslaughter] instructions." Defense counsel said she "[u]nderstood." The court replied, "There would have to be a pretty good reason for me not to do it. I'm leaning towards giving it."
At the end of that same day, the court asked defense counsel whether she had "had time to consider whether or not [she] want[ed] a voluntary manslaughter" instruction. Counsel responded, "I have had time to consider it, but I have not made a decision." The court warned, "Okay. We are at the point. By morning, I'm going to have to know." Defense counsel said she understood. The court expressed its current thinking on the issue: "My inclination is, as I look at this case, unless something drastic happens with your case, I'm going to instruct on voluntary manslaughter, I'm going to give the jury both the unreasonable self-defense and give them accident, and I'm going to give them heat of passion. I may have to do that over your objection. I'm not absolutely sure yet. Maybe you can convince me." After discussing accident and imperfect self-defense, the court asked defense counsel, "So you think you may not want me to give heat of passion? You may want unreasonable self-defense?" Defense counsel responded, "That's correct."
Two court days later, after the prosecution and defense had rested their cases, the court asked defense counsel, "Do you want an instruction on voluntary manslaughter?" The following colloquy ensued:
"[DEFENSE COUNSEL]: Can I think about it until tomorrow morning?
"THE COURT: No. I'm going to instruct the jury at 10 o'clock tomorrow. I mean, I have been asking this question for the last two weeks. Let me ask you this. I can ask you in another way. Do you want the instruction of self-defense and imperfect self-defense and heat of passion?
" [DEFENSE COUNSEL]: Not heat of passion."
The court then explained that if defense counsel wanted the jury instructed regarding imperfect self-defense, the court would have to instruct regarding voluntary manslaughter. The court added, "As to heat of passion, my inclination was, though somewhat transient and somewhat weak, to instruct on heat of passion."
The court then asked defense counsel, "[Y]ou don't want me to instruct on heat of passion?" Defense counsel responded, "That's correct." The court then read aloud from People v. Breverman (1998) 19 Cal.4th 142 regarding the courts' obligation to instruct regarding lesser included offenses and defenses. Defense counsel initiated the following discussion:
"[DEFENSE COUNSEL]: "I understand. And the answer is no."
"THE COURT: I haven't even asked my question. Thank you for—
"[DEFENSE COUNSEL]: It conflicts with common sense.
"THE COURT: Huh?
"[DEFENSE COUNSEL]: It conflicts with common sense.
"THE COURT: Here is the way I'm picturing this one. Because I don't want to walk into the world of invited error. There is the [S]upreme [C]ourt case that says I should instruct on all theories that there is evidence of. If the defense doesn't want a particular defense, heat of passion here, then the substantive theory of voluntary manslaughter with heat of passion is inconsistent with the defense. I also have to consider the credibility of witnesses. [¶] The reason why you don't want heat of passion is one of your defenses is accident, and you believe that the instruction on heat of passion would be inconsistent with your theory on accident because it requires some type of heated conduct and perception that would be contrary to your defense?
"[DEFENSE COUNSEL]: Yes. I also think heat of passion is inconsistent with fear." (Italics added.)
Apparently in response to defense counsel's reference to "fear," the court then read the following excerpt from the proposed instruction: " 'Heat of passion does not require anger, rage, or any specific emotion. It can be violent or intense emotion that causes a person to act without deliberation and reflection. While no specific provocation is required, slight or remote provocation is not sufficient. Such provocation may occur over a short or a long period of time. It is not enough that a defendant was simply provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether or not that was sufficient." (See CALCRIM No. 570 ["Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen. Code, § 192[, subd.] (a)"].) The court asked defense counsel, "You don't want it?" Counsel responded, "That's correct."
The court decided not to give the instruction, explaining:
"I'm not going to give it, one, because the defense—and I have to respect [defense counsel]'s abilities to defend her client where she believes it's necessary to protect his rights. The jury is already being instructed on the voluntary manslaughter. It's not like I'm taking away one of their options. I'm just taking away one of the choices on the a la carte menu. When I talk about voluntary manslaughter, heat of passion, I would want to give it in an abundance of caution.
"But as [the People] point[] out, there was some cooling off period that went on. The defendant had the ability to reflect. He actually went to the crime scene, left, went back to McDonald's, then came back, and then actually ended up at the end of the driveway, but still had the ability to reflect. I think he cannot set up his own standard of conduct, feeling intense emotion by the situation that he created. I'm not going to give the heat of passion instruction under voluntary manslaughter."
As the court and counsel worked their way through the packet of proposed instructions, the court came across the heat-of-passion instruction and said: "I'm going to pull that out. The defense doesn't want it. I've made a record." (Italics added.)
2. Relevant Legal Principles
" 'A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." ' " People v. Cady (2016) 7 Cal.App.5th 134, 145 (Cady).) "A trial court errs in failing to instruct on a lesser included offense supported by the evidence ' " 'even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.' " ' " (Ibid.)
"Nevertheless, even in instances where the trial court errs by failing to instruct on a lesser included offense supported by the evidence, 'the claim may be waived under the doctrine of invited error if trial counsel both " 'intentionally caused the trial court to err' " and clearly did so for tactical reasons.' " (Cady, supra, 7 Cal.App.5th at p. 145.) " 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) "Invited error will be found . . . only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction." (Cady, at p. 145.)
In the context of jury instructions, the invited error doctrine bars a defendant from " 'invok[ing] a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence.' " (People v. Horning (2004) 34 Cal.4th 871, 905; see People v. Catlin (2001) 26 Cal.4th 81, 150 [invited error doctrine applied where "[i]t was defendant's proposal, with which the prosecutor somewhat reluctantly agreed, to omit the definition of express malice from CALJIC No. 8.11"]; People v. Wader (1993) 5 Cal.4th 610, 657-658.)
"For us to find that the doctrine of invited error applies, 'the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to him, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice.' " (Cady, supra, 7 Cal.App.5th at pp. 145-146.)
3. Analysis
Assuming (without deciding) that the trial court erred by not instructing the jury regarding the heat-of-passion theory of manslaughter, the invited error doctrine bars Watkins's challenge.
The record shows Watkins's trial counsel made a deliberate decision to forgo the instruction. Although counsel initially was "not sure" whether she wanted the instruction, she subsequently made her wishes clear at least five times.
As already noted, when the court asked defense counsel, "So you think you may not want me to give heat of passion? You may want unreasonable self-defense?" counsel responded, "That's correct." When the court asked whether she "want[ed] the instruction of self-defense and imperfect self-defense and heat of passion," defense counsel responded, "Not heat of passion." When the court later asked, "[Y]ou don't want me to instruct on heat of passion?" counsel responded, "That's correct." When the court clarified its instructional duties vis-à-vis lesser included offenses and defenses, counsel responded, "I understand. And the answer is no." Finally, after the court read aloud from the pattern jury instruction and asked, "You don't want it?" defense counsel responded, "That's correct."
The record also shows the decision was clearly a tactical one. In determining counsel's reasons for opposing the instruction, the trial court posited it was because counsel "believe[d] that the instruction on heat of passion would be inconsistent with [her] theory on accident." Counsel responded, "Yes. I also think heat of passion is inconsistent with fear." Thus, counsel's reason for opposing the heat-of-passion instruction was expressly tactical.
Watkins argues the invited error doctrine does not apply because "it is unlikely that defense counsel's objection persuaded the trial court not to provide this instruction" because the court identified an additional basis on which to forgo the instruction (that Watkins "set up his own standard of conduct" by following the Osunas). We are not persuaded. First, the point is irrelevant. An appellant's deliberate tactical choice need not be successful for the invited error doctrine to apply—"the crucial inquiry is whether defendant advocated for the erroneous ruling, not whether the trial court's error was caused by that advocacy." (Cady, supra, 7 Cal.App.5th at p. 147, fn. 4.)
Second, in any event, the record shows that Watkins's opposition to a heat-of-passion instruction was the primary reason the court did not give such an instruction. The court expressed from the outset its "inclination" to give the instruction, advising counsel "[t]here would have to be a pretty good reason . . . not to do it," which would have to be memorialized in "a dialogue on the record." The court put the onus on defense counsel to "convince" the court the instruction was unwarranted. When the court announced it would not be giving the instruction, the first reason the court gave was defense counsel's tactical decision, which the trial court said it "ha[d] to respect." Although the court also gave a secondary reason, when it later discarded the form instruction from the packet of proposed instructions, the court said it was doing so because "[t]he defense doesn't want it." Thus, read fairly, the record shows it was Watkins's opposition to the heat-of-passion instruction that dissuaded the trial court from giving it.
As a fallback argument, Watkins contends that if his trial counsel invited the alleged instructional error, then she ineffectively represented him by objecting to the instruction based on the mistaken belief that heat of passion "is inconsistent with fear." We are not persuaded. Defense counsel also objected to the heat-of-passion instruction on the basis it was inconsistent with Watkins's accident defense, which defense counsel previously identified as "the primary defense." On the record before us, this was a sound tactical decision.
In sum, because Watkins's trial counsel made a deliberate, informed, tactical decision to forgo instruction on the heat-of-passion theory of voluntary manslaughter, the invited error doctrine bars Watkins from arguing on appeal that the trial court erred by not instructing the jury on that theory.
II. Exclusion of Character Evidence
To support his claim that the Osuna brothers cornered him in the condo driveway and, thus, he was entitled to defend himself, Watkins moved in limine to introduce evidence of prior incidents he contended would show that George and Christopher "were aggressive, belligerent, hostile, and threatened physical violence when drunk." Watkins contends the trial court erred by excluding this evidence. We disagree.
A. Background
Watkins moved in limine under Evidence Code section 1103 to introduce evidence of three "incidents of prior aggressive behavior" to show George and Christopher had a "propensity for violence." Watkins supported his motion with reports compiled by defense investigators.
The first incident occurred in 2010 at the Typhoon Saloon. The bar's security team denied entry to Christopher and George because Christopher appeared overly intoxicated. Christopher yelled loudly, "I'm a fucking sheriff. You can't treat me like this." He "got within inches" of one security guard's face and threatened, "I'll just fuck you guys up." The security team physically subdued Christopher. One security guard said Christopher "was the primary aggressor," but George, whom the guard understood was a Border Patrol officer, was "mouthing off too."
The second incident occurred in 2013 at Ye Olde Plank Inn. Christopher and George were drinking beer with a man they had just met. When the bar closed at 2:00 a.m., Christopher and George showed the man they had two cases of beer in the trunk of their car, and asked him to continue drinking with them. When the man declined, Christopher and George got angry, surrounded him, and told him he was "under arrest." A bar employee heard the commotion, stepped outside, and yelled at Christopher and George to leave the man alone. The man fled to his residence and called the police, who later arrested Christopher and George for disorderly conduct.
The third incident involved domestic violence allegedly committed by George against his girlfriend, L.C., in 2013. Felony charges stemming from this incident were pending against George when he died.
The trial court denied Watkins's motion as to the first two incidents on two separate grounds. First, the court found that evidence of Christopher's character was altogether inadmissible because Evidence Code section 1103 creates an exception only for evidence of the character "of the victim of the crime for which the defendant is being prosecuted," and Christopher was not such a victim (only George was).
The one-count Information alleges: "On or about June 16, 2014, DARIUS JURIE WATKINS did unlawfully murder JORGE OSUNA, a human being, in violation of PENAL CODE SECTION 187[, subdivision] (a)."
Second, the court excluded evidence regarding the first two incidents under Evidence Code section 352. As to Christopher, the court found the incidents' probative value was substantially outweighed by their prejudicial effect inasmuch as "physical violence was threatened but not used." As to George, the court additionally observed his minimal role in the "somewhat antiquated" 2010 incident at the Typhoon Saloon. As to the 2013 incident at Ye Olde Plank Inn, the court found "there is just not much probative value" because, although there was "loud and unruly" alcohol-related behavior, "it's not a piece of violence or character of violence." Moreover, the court found "it would confuse the jury" and result in a "trial within a trial" that would "take forever to get through."
Turning to the third incident, the court tentatively ruled that evidence of George's alleged domestic violence—"a very offensive piece of conduct"—would be admitted "even though he is not here to explain it." The court warned, however, that the admission of George's prior conduct could "open a door to [Watkins's] conduct," which included a guilty plea to resisting an executive officer (§ 69, subd. (a)). This prompted the court to "wonder" aloud whether "it would be better to try this case based on what occurred that night versus getting into everybody's character?" In that vein, the court (1) stated it was "open game" to question Christopher regarding whether he was the initial aggressor at McDonald's or at the condo complex; and (2) allowed evidence of George's blood alcohol level to support Watkins's accident defense and to impeach Christopher regarding how much alcohol the brothers drank before the incident.
B. Relevant Legal Principles
Evidence of a person's character is generally inadmissible to prove that person acted in conformity with his character, or trait of character, on a given occasion. (Evid. Code, § 1101, subd. (a).) An exception to this general rule of exclusion arises in criminal cases when "evidence of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted" is being "[o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (Evid. Code, § 1103, subd. (a)(1).) Under this exception, " '[i]t has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' " (People v. Wright (1985) 39 Cal.3d 576, 587.) "Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence." (Ibid.)
The admission of character evidence under section 1103 "is not without bounds, but is subject to the dictates of Evidence Code section 352." (Wright, supra, 39 Cal.3d at p. 587.) Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
We review a trial court's evidentiary rulings under Evidence Code sections 1103 and 352 using the deferential abuse of discretion standard. (People v. Pollock (2004) 32 Cal.4th 1153, 1171; People v. Gutierrez (2009) 45 Cal.4th 789, 827-828.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) We review a trial court's interpretation of a statute de novo. (People v. Grimes (2016) 1 Cal.5th 698, 712.)
C. Analysis
We conclude the trial court properly excluded evidence of Christopher's and George's prior conduct. The evidence was presumptively inadmissible under Evidence Code section 1101, subdivision (a). As to Christopher, it did not fall within the plain language of Evidence Code section 1103, subdivision (a)(1), which creates an exception for character evidence "of the victim of the crime for which the defendant is being prosecuted." Watkins was charged with only one crime (murder), and George was the only victim of that crime. Thus, Evidence Code section 1103, subdivision (a)(1) could only have applied to evidence of George's prior conduct. Although there is some logical appeal to Watkins's argument that the character of his victim's alleged co-aggressor is also relevant to his defenses, we are bound by the plain and unambiguous language the Legislature used to express its intent. (People v. Loeun, supra, 17 Cal.4th at pp. 8-9; People v. Sinohui, supra, 28 Cal.4th at p. 211; People v. Prescott, supra, 213 Cal.App.4th at p. 1477.) Accordingly, because Christopher was not "the victim of the crime for which [Watkins] [was] being prosecuted," Evidence Code section 1103, subdivision (a)(1) did not render evidence of his character admissible.
The cases Watkins cites in arguing for a broader definition of "victim" than that provided in Evidence Code section 1103 are inapposite. People v. Brophy (1954) 122 Cal.App.2d 638 found it was error (though nonprejudicial) for the trial court to exclude character evidence as to one victim (the target of the conduct alleged in count 1) when offered as to another victim (the target of the conduct alleged in count 2), where the defense theory was that the two victims "were acting jointly with a common design and purpose." (Id. at p. 647.) However, Brophy was decided before the Legislature enacted Evidence Code section 1103, with its specification that the admissibility of character evidence be limited to that regarding "the victim of the crime for which the defendant is being prosecuted." (People v. Tackett (2006) 144 Cal.App.4th 445, 453 (Tackett); Cal. Law Revision Com. com., Deering's Ann. Evid. Code (2004 ed.) foll. § 1102, p. 357.) Thus, Brophy sheds no light on the issue before us.
Nor does Tackett, supra, 144 Cal.App.4th 445 illuminate the issue. There, a defendant charged with DUI offenses stemming from a fatal car crash sought to introduce evidence of his passenger's prior drunk-driving conduct to establish that the passenger was actually driving during the commission of the charged offense. (Id. at p. 448.) Although the Tackett court discussed the definition of "victim" as used in Evidence Code section 1103, the court did so in the wholly inapposite context of determining whether character evidence was admissible to determine a perpetrator's identity. (Id. at pp. 454-455.) Tackett is further distinguishable because the passenger superficially satisfied Evidence Code section 1103's criteria for being a "victim" because he was injured in the crash and "the charging document alleged that [he] was a victim of the crime of DUI causing bodily injury." (Tackett, at pp. 448-449.) Not so for Christopher.
Turning to the court's exclusion of evidence of George's prior conduct, we find no abuse by the trial court of the broad discretion conferred under Evidence Code section 352. George's role in the "somewhat antiquated" 2010 Typhoon Saloon event was minimal and did not involve any actual violence. The Olde Plank incident likewise involved no actual violence, and the court was concerned that conducting a trial-within-a-trial on a side issue would consume undue time and confuse the jury. The court's concern was amplified by the fact the admission of evidence of George's character would open the door to evidence of Watkins's character, which included a section 69 conviction. In light of the fact the jury otherwise heard from 36 witnesses over the course of six trial days, we find no abuse of discretion in the trial court's decision not to further expand the scope of trial.
Even if the trial court erred in excluding Watkins's proffered evidence regarding George and Christopher's prior conduct, we would find no prejudice under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, the test we apply when reviewing the erroneous exclusion of evidence that has not precluded an entire defense. (See People v. Fudge (1994) 7 Cal.4th 1075, 1103; People v. Corella (2004) 122 Cal.App.4th 461, 472.) Under Watson, an error is harmless unless it is reasonably probable that a result more favorable to the defendant would have been reached had the evidence been admitted. (Fudge, at p. 1104.)
We find it is not reasonably probable Watkins would have obtained a more favorable result had the jury heard evidence about George and Christopher's prior conduct. First, the court did not exclude all evidence of prior conduct. Indeed, the court tentatively allowed evidence of George's alleged "very offensive" domestic violence conduct, but Watkins introduced no evidence of it at trial. As noted, doing so would have opened the door for the jury to also learn of Watkins's prior conduct of resisting an executive officer.
Second, Watkins's statement to detectives was heavily impeached at trial. His claim that no one in his group was drinking alcohol was contradicted by K.J.'s testimony and a photograph of his group with a vodka bottle. He fled the crime scene and did not turn himself in until much later that day. He failed to disclose to detectives that he first followed the Osunas' car alone, then regrouped with his friends at McDonald's before returning to the condo complex purportedly to get the Osunas' license plate. Despite following the Osunas twice, Watkins never got the license plate number. Watkins's claim that he was driving slowly (three to five mph) when he collided with George was contradicted by his car's black box data, which showed him accelerating fairly steadily to 38 mph—at times giving the car 100 percent throttle.
The court instructed the jury with CALCRIM No. 372, which states: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." --------
Third, although Christopher's and Joseph's credibility was also impeached (regarding how much alcohol they drank, whether they laughed about the McDonald's incident, and whether Watkins reversed into George), and although the jury heard evidence of George's intoxication and "severe[] impair[ment]," the jury nonetheless rejected Watkins's accident defense and reached a guilty verdict on the murder count.
Finally, the court told counsel it was "open game" to question Christopher and Joseph about whether they were the initial aggressors at McDonald's or in the condo complex. The record suggests the older (except for Joseph), substantially larger, and likely intoxicated Osuna brothers ganged up on a slender teenager; the brothers laughed, and George bragged, about it afterwards; and Christopher said, "now it's really on" when he learned his group had been followed to the condo. In short, even without character evidence, the record did not portray the Osunas in an unfairly sympathetic light.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J. WE CONCUR: NARES, J. IRION, J.