Opinion
H047320
08-08-2022
THE PEOPLE, Plaintiff and Respondent, v. CRAIG ANTHONY ALLEN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1641693)
Danner, J.
A jury convicted defendant Craig Anthony Allen of two counts of murder and several other crimes related to an automobile collision that killed two people and injured a third. The trial court sentenced Allen to 30 years to life in prison, consecutive to seven years and eight months.
On appeal, Allen claims the trial court erred by admitting cumulative evidence of his prior convictions and uncharged bad acts related to his past driving, failing to instruct the jury on the crime of vehicular manslaughter with gross negligence, and prohibiting defense counsel from using the elements of gross vehicular manslaughter to argue against the murder charges. Allen also contends the cumulative effect of the alleged errors requires reversal of his convictions.
For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In October 2017, the Santa Clara County District Attorney filed an information charging Allen with nine counts: murder of Chris Durbin and Sandra Morse (Pen. Code, § 187; counts 1 &2, respectively), hit and run driving resulting in the death of Durbin and Morse (Veh. Code, § 20001, subds. (a), (b)(2); counts 3 &4, respectively), hit and run driving resulting in injury to S.G. (Veh. Code, § 20001, subds. (a), (b)(1); count 5), attempting to dissuade a victim or witness, Sarah G., from reporting a crime (§ 136.1, subd. (b)(1); count 6), misdemeanor false reporting of a crime (§ 148.5, subd. (a); count 7), and misdemeanor driving in violation of a license restriction related to a driving under the influence (DUI) offense (Veh. Code, § 14601.2, subd. (b); counts 8 &9).
Unspecified statutory references are to the Penal Code.
We use the initials of the surviving hit and run victim (S.G.) and the first name and last initial of the victim of the dissuasion count (Sarah G.) to distinguish them from one another and to protect their personal privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4).)
In 2019, the jury convicted Allen as charged. The trial court imposed an aggregate sentence comprised of an indeterminate term of 30 years to life, consecutive to a total determinate term of seven years and eight months.
B. Evidence Presented at Trial
1. February 20 Collision
On the evening of February 20, 2016, Allen was with his cousins Taylor and Austin Shirley at their home in San Jose, along with Erik Holtz, Karissa Helgoe, and Sarah G. The group was hanging out at the house and some of them were drinking alcohol. Sarah G. testified that although she lacked a current recollection about Allen drinking, she had previously told the police truthfully that Allen drank two or three shots of Jack Daniels about 30 minutes before the crash and was not "100 percent sober." She also testified that Allen sounded intoxicated in a Snapchat video recorded by Helgoe that evening.
Unless otherwise indicated, all dates were in 2016.
Holtz was 22 years old; Helgoe was 20; and Sarah G. was 19. The record indicates that Allen was 32 years old.
Eventually, the group left the house. Allen got into the driver's seat of a Ford Focus that belonged to his girlfriend, Yvonne Rowland. Allen's cousin Austin sat in the front passenger's seat of the Ford; Helgoe and Sarah G. sat in the backseat. Holtz got into his car with Taylor. The two cars made their way onto Camden Avenue, with Holtz following behind Allen.
According to Holtz, Allen accelerated southbound on Camden Avenue toward Hicks Road and came upon two vehicles in front of him. Because Allen was not able to slow down to avoid those vehicles, he drove the Ford into the northbound lane before moving back into the southbound lane. A motorist who was driving northbound on Camden Avenue with his wife and two children at around 9:30 p.m. similarly testified to seeing a fast-moving car driving southbound on the northbound side of the roadway. The motorist turned his car to the right to avoid a head-on collision, and the southbound car "jerked back" to the other side of the road. The motorist and his wife believed that the driver of the southbound car drove into their northbound lane in an effort to pass southbound traffic.
According to Holtz, after Allen moved back into the southbound lane, a green Honda Civic veered to its right and then to the "left out of control," before crossing into oncoming traffic and colliding with another vehicle. Additionally, Sarah G. and Helgoe testified that Allen bumped his car into another car that was traveling in front of them.
Chris Durbin was driving the Honda as it collided, broadside, with a Toyota Prius driven by S.G. Durbin and his wife, Dr. Sandra Morse, died as a result of the collision. S.G. sustained injuries to his chest and back.
The parties stipulated that a sample of S.G.'s blood taken after he was transported to the hospital was negative for alcohol and all other controlled substances except morphine that had been administered at the hospital. Additionally, a blood sample taken from Durbin was negative for alcohol and controlled substances.
Allen drove away from the scene of the collision without stopping to determine if any injuries had occurred. Holtz pulled over, saw how serious the crash was, drove around a corner, called 911, and left the area. Eventually, Holtz, Taylor, Allen, and everyone who had been in the Ford with Allen returned to the Shirleys' house. There, according to Sarah G., Allen said "[t]hat if anybody were to ask, [] the car was stolen, and [Sarah G.] didn't know what happened to it."
About 37 minutes after the crash, Rowland (who was in jail at the time) called Allen. Rowland thought Allen sounded intoxicated during their call. Allen said he had rear-ended someone and thought they might be critically injured. He claimed the Ford was "totaled." When Rowland asked Allen if he had been drinking, he responded, "I don't know what to do right now, yeah." However, later in the conversation, Allen denied drinking. When Rowland reminded Allen that she had previously told him not to drink and drive, Allen responded, "I know already." "I know."
The parties stipulated that Rowland had been arrested and charged for robbery offenses on November 6, 2015, signed a plea agreement on March 17, 2017, agreeing to testify truthfully in that case (but she never actually testified because the case resolved prior to her testifying), was sentenced to five years in that case on August 3, 2017, and was released from jail on May 8, 2018.
The next day (February 21), Allen reported to the police that Rowland's Ford Focus had been stolen. A few days later, Holtz contacted the police about the February 20 collision. On March 4, Allen spoke to the police. He told them that he had lost the keys to the Ford-possibly having dropped them while smoking a cigarette outside his cousins' house-and that he had not driven the car on the night of February 20. He admitted drinking that night. After speaking to the police, Allen drove away from the police station. The police immediately cited him for driving on a suspended license and impounded his car.
California Highway Patrol (CHP) Officer Aaron Huddleston testified as an expert in traffic collision reconstruction and crash data retrieval. Officer Huddleston conducted a collision reconstruction and review of the present case. Based on his review of case materials, including data extracted from the electronic data recorders of the Ford Focus and Toyota Prius, Huddleston opined that the accident was caused by the Ford colliding with the rear of the Honda Civic, causing the Honda to spin out of control and veer to its left, where it was broadsided by the Toyota. The posted speed limit at the crash site was 40 miles per hour (mph). The Toyota was traveling approximately 38 mph about two seconds before it collided with the Honda and approximately 31 mph at impact. The data from the Ford showed that its accelerator pedal "was depressed as far as it could go" four seconds before it hit the back of the Honda. The Ford was traveling 91.7 mph 3.5 seconds before it hit the Honda and 66.1 mph at impact. Officer Huddleston calculated the Honda's speed as 43.7 mph when it was hit from behind by the Ford. According to Officer Huddleston, speed "[a]bsolutely" was a contributing factor to the cause of the collision, and 91 mph is not a safe speed for that stretch of Camden Avenue.
2. Allen's Prior DUI Convictions and Driving History
On October 31, 2012, about 1:46 a.m., San Mateo County Sheriff's Deputy Patrick McKenna observed a car coming toward him on Woodside Road and heard the car's engine "revving." The car passed close to Deputy McKenna's patrol car, traveling approximately 48 mph in a 25 mph zone. Deputy McKenna effected a traffic stop. Allen (the driver) smelled of an alcoholic beverage and had bloodshot, watery, and glossy eyes and slurred speech. Allen was unsteady as he exited his car and failed the field sobriety tests. Deputy McKenna arrested Allen for DUI. Allen admitted drinking beer but denied being drunk, driving too fast, or being unable to control the car. Subsequently, in March 2013, Allen was convicted of DUI based on a no-contest plea entered pursuant to a plea agreement.
On December 16, 2014, about 9:42 p.m., CHP Officer Mark Mitchell saw a vehicle approaching at a high rate of speed on Highway 680 in Alamo. According to his radar speed detector, the vehicle was traveling 91 mph in a 65 mph zone. As the vehicle passed by Officer Mitchell, he saw a second vehicle (a red car) come up behind the first vehicle and then brake and swerve into the center (emergency) shoulder. Mitchell thought that the driver of the speeding vehicle had seen him, "panicked," and stepped on his brakes, causing the driver of the second vehicle to swerve. When Officer Mitchell effected a traffic stop on the speeding vehicle, he smelled the odor of an alcoholic beverage coming from inside the car. Allen (the driver) had watery and bloodshot eyes. He admitted having consumed two beers. When Mitchell mentioned the red car, Allen said that that car was being driven by a friend of his who was" 'fucking'" with him. Allen also said he was not aware that he was driving 91 mph.
After administering field sobriety tests and a preliminary alcohol screening device test, Officer Mitchell arrested Allen for being under the influence of alcohol. Mitchell ran a criminal history check and determined that Allen was on court probation. As Allen was being transported to jail, he said he had drunk three beers and was able to drive "just fine." Subsequently, in August 2015, Allen was convicted of DUI based on a guilty plea entered pursuant to a plea agreement. When Allen entered his guilty plea in court, he said he understood that he could in the future be charged with murder if he killed someone while driving under the influence of alcohol and/or drugs.
On August 5, 2015, CHP Officer Christopher Davidson was on patrol in Solano County about 12:10 a.m., when he saw a pickup truck traveling on Highway 80 about 80 mph in a 65 mph zone and weaving in its lane. After stopping the truck, Officer Davidson detected the odor of an alcoholic beverage and saw that Allen (the driver) had bloodshot and slightly watery eyes. Allen said that he did not have a driver's license due to a previous DUI conviction and believed he was still on probation. When Officer Davidson asked Allen if he had consumed any alcohol, Allen admitted that he had had "some beers." When asked exactly how many, Allen said it did not matter because he was going to jail and was not supposed to be driving after drinking. Based on Allen's appearance, admission about drinking alcohol, and performance on field sobriety tests and a preliminary alcohol screening device test, Officer Davidson arrested Allen for DUI.
Rowland testified about Allen's past driving over the months of their relationship. She described Allen as a "good" driver who "liked to go fast sometimes" on "windy roads, [and] sometimes freeways." Rowland had witnessed Allen "[b]ounce around" between lanes while driving fast. Rowland "always" voiced her concerns about Allen's fast driving, but he did not change his behavior. Once, she was a passenger on Allen's motorcycle on a freeway while he raced another motorcycle, driving at around 100 mph. Allen said he could "manage the speed, and that everything was going to be okay." Allen thought he was a good driver and said he "was cautious, he knew when to move lanes." A few times, Allen arrived at a location to pick up Rowland (either with a car or his motorcycle) and appeared to be under the influence of alcohol. Once, Rowland and Allen got into an argument about who should drive because he was drunk, and he told Rowland that he could drive and was fine. On that occasion, Rowland had to enlist the help of two friends to take Allen's car keys from him. Rowland had conversations with Allen "[e]very day" about the dangers of drinking and driving, including between 10 and 20 times after she had observed him having driven drunk. Allen cared and listened to what Rowland had to say, "[b]ut that was only in the moment." He said "he would make sure that he was careful and that he would stop doing what he was doing."
Three instructors from Alert Driving Incorporated (Alert Driving) testified about the months-long classes and group and individual counseling sessions that Allen had attended (and was still attending at the time of the present collision) as a consequence of his prior DUI convictions. The classes and counseling sessions included information about the dangers of drinking and driving. In addition, Alert Driving's former outpatient director testified that the school's curriculum contained information about the dangers of drinking and driving and described how such information was conveyed using statistical data, individual testimony, and videos.
The prosecution admitted into evidence records from the Department of Motor Vehicle concerning Allen's prior license suspensions. In addition, the parties stipulated to information concerning Allen's driving record. That information was portrayed in a chart listing Allen's prior traffic citations, convictions, and resulting points on his driver's license, fines and fees, driver's license suspensions, and other consequences.
Allen presented no witnesses in his defense.
II. DISCUSSION
Allen asserts that the trial court committed three prejudicial errors: admitting evidence of his prior convictions and uncharged bad acts related to his history of bad driving, failing to instruct the jury on the crime of vehicular manslaughter with gross negligence, and prohibiting his trial counsel from using the elements of gross vehicular manslaughter in argument. Additionally, Allen asserts that the cumulative effect of these alleged errors requires reversal of his convictions. We address his claims in turn.
A. Admission of Allen's Prior Bad Driving
1. Background
The prosecution moved in limine to admit evidence of Allen's prior bad driving under Evidence Code section 1101, subdivision (b) (hereafter Evidence Code section 1101(b)). The prosecution argued that such evidence was relevant to Allen's knowledge for the implied malice element of murder. Specifically, the prosecution asked to present evidence of (1) Allen's prior DUI arrests and convictions in 2013, and 2015, including their underlying facts, (2) Allen's attendance at court-ordered DUI programs and the programs' presentations, video recordings, and subject matter, (3) Allen's attendance at a court-ordered alcohol outpatient program and the subjects addressed in that program, (4) Allen's prior license suspensions, and (5) Allen's 22 prior traffic violations.
Allen moved in limine to exclude or limit admission of his prior traffic and DUI convictions and any evidence concerning the court-ordered programs. He asserted that his prior DUI convictions and court-ordered DUI classes were irrelevant to the issue of knowledge because there was a lack of evidence showing that he was intoxicated at the time of the present offense. Alternatively, he "object[ed] to the carte-blanche admission of all of [his] prior traffic-related convictions and DUI classes" under Evidence Code section 352 and asked the court to "conduct a thorough hearing on each piece of evidence and [the] facts the District Attorney is attempting to admit."
Pretrial, the trial court heard argument from the parties regarding Allen's prior bad driving. The prosecutor argued that the anticipated evidence would support implied malice under two theories: That Allen consumed alcohol and drove recklessly with alcohol in his system at the time of the collision, and "that even removing the alcohol from the calculation entirely," Allen's drove exceedingly fast and recklessly. The court opined that "the actual so-called bad driving is relevant and extremely probative" and "the DUIs are relevant both for any bad driving, but also because driving under the influence is so dangerous." Relying principally on People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz), the court concluded that certain acts of prior bad driving were relevant, including Allen's violations for running a red light, speeding, crossing a double yellow line, and DUI. The court, however, decided that other traffic violations were not relevant, such as driving without insurance or registration, possession of marijuana while driving, and failures to appear. The court also analyzed the evidence it deemed relevant under Evidence Code section 352.
Regarding Allen's DUI arrests, the trial court ruled that evidence about the police officers' observations of Allen's driving and condition, as well as the consequences of the arrests, was admissible but certain details such as Allen's blood-alcohol content and the jail time he had received were not.
The trial court also addressed the admissibility of evidence about the court-ordered DUI programs. The court concluded that testimony from instructors about the programs was admissible but excluded certain information related to the programs.
As discussed above, at trial, the prosecution presented evidence about Allen's prior DUI arrests and convictions, other evidence concerning his prior bad driving, and evidence regarding the Alert Driving school programs.
During and after the presentation of evidence about Allen's prior bad driving, the trial court instructed the jury on the limits of its consideration of that evidence. The court also instructed the jury on implied malice for counts 1 and 2 as follows: "Mr. Allen acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; AND [¶] 4. He deliberately acted with conscious disregard for human life."
The trial court's final instruction (a modified version of CALCRIM No. 375) stated, inter alia, that the jurors could consider the evidence "for the limited purpose of deciding whether or not" Allen "acted with a conscious disregard for human life," "knew the dangers of speeding," "knew the dangers of driving on the wrong side of the road," and/or "Allen knew the dangers of drinking and driving when he allegedly acted in this case." The instruction also told the jurors they must not conclude from the evidence that Allen had a "bad character" or was "disposed to commit crime" and that the evidence was "not sufficient by itself to prove that Mr. Allen is guilty of Murder." Even though certain prior misconduct may be relevant and thus not subject to exclusion under Evidence Code section 1101, "[b]ecause evidence of a defendant's commission of other crimes, wrongs, or bad acts' "may be highly inflammatory, its admissibility should be scrutinized with great care." '" (People v. Cage (2015) 62 Cal.4th 256, 273.)" '[T]o be admissible such evidence "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.
On appeal, Allen contends that, even though his prior convictions and uncharged bad driving were relevant to the issue of his subjective knowledge of risk for implied malice, the limited probative value of the driving history evidence was outweighed by the substantial danger of undue prejudice and "[t]his danger was magnified by the repetitive and cumulative nature of high[ly] prejudicial prior bad acts evidence." He argues further that because evidence of his attendance at Alert Driving school established that he had been "instructed and counseled as to the risks of driving under the influence, all evidence regarding [his] prior convictions and uncharged bad driving was cumulative and redundant on the issue of [his] knowledge." He claims that the trial court abused its discretion in admitting this allegedly cumulative evidence, violated his due process right to a fair trial, and prejudiced him.
2. Legal Principles
In a vehicular murder case, "when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied. (§ 188.)" (People v. Watson (1981) 30 Cal.3d 290, 298 (Watson).)
Evidence of a defendant's prior convictions or prior acts of DUI or reckless driving may be admitted pursuant to Evidence Code section 1101(b) to prove the requisite mental state of implied malice. (See Ortiz, supra, 109 Cal.App.4th at pp. 111-113.)" '[O]ther crimes' evidence is admissible under Evidence Code section 1101, subdivision (b) 'when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.'" (People v. Jackson (2016) 1 Cal.5th 269, 300.) Evidence of prior bad driving tends to establish a "defendant's knowledge-gained in the course of the prior misconduct-of the natural consequences, dangerous to life, of the reckless operation of a motor vehicle, and of his persistence in that behavior, thus evidencing a conscious disregard for the lives of others on the road." (Ortiz, at pp. 111-112.) [Citations.]" [Citation.] We thus proceed to examine whether the probative value of the evidence of defendant's uncharged offenses is "substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)'" (People v. Foster (2010) 50 Cal.4th 1301, 1330 (Foster); see also People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).)
" 'Evidence is prejudicial within the meaning of Evidence Code section 352 if it" 'uniquely tends to evoke an emotional bias against a party as an individual'" [citation] or if it would cause the jury to"' "prejudg[e]" a person or cause on the basis of extraneous factors.'" '" (Foster, supra, 50 Cal.4th at p. 1331.) "Due to the[] inherent risks [associated with the admission of other misconduct], 'uncharged offenses are admissible only if they have substantial probative value.'" (Ibid.; see also People v. Kipp (1998) 18 Cal.4th 349, 371.)
Further, if evidence of uncharged misconduct "is 'merely cumulative with respect to other evidence which the People may use to prove the same issue,' it is excluded under a rule of necessity." (People v. Thompson (1980) 27 Cal.3d 303, 318; see also Ewoldt, supra, 7 Cal.4th at pp. 405-406.) "But trial courts are not required to exclude all cumulative evidence and if evidence has substantial relevance to prove material facts which are hotly contested and central to the case, it is not 'merely cumulative.'" (People v. Lang (1989) 49 Cal.3d 991, 1016 (Lang), abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190; see also People v. Rodriguez (1986) 42 Cal.3d 730, 758; People v. Mattson (1990) 50 Cal.3d 826, 871.)
" 'The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.'" (People v. Jones (2013) 57 Cal.4th 899, 949 (Jones).)
"We review the trial court's decision whether to admit evidence, including evidence of the commission of other crimes, for abuse of discretion." (People v. Harris (2013) 57 Cal.4th 804, 841.) "A trial court's exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
3. Analysis
We are not persuaded that the trial court erred in admitting evidence of Allen's prior convictions and bad driving. The record demonstrates that the trial court considered the probative value and potential prejudice of Allen's driving history when deciding whether to permit the presentation of that evidence. Further, the probative value of Allen's driving history and his awareness of the risks created by his conduct on February 20 is substantial. Allen's DUI arrests, two DUI convictions, multiple moving violations and license suspensions, and other bad driving (coupled with Rowland's testimony) showed the various ways that Allen had been warned about the dangers of driving recklessly or under the influence over the years before the February 20 collision.
Although there was no evidence that Allen's prior bad driving had resulted in injury or property damage, his repeated exposure to other consequences of his driving demonstrated to him that each instance of reckless or drunk driving created a dire risk and "sensitize[d] him to the dangerousness of such life-threatening conduct." (Ortiz, supra, 109 Cal.App.4th at p. 112; see also id. at p. 118.)
While the probative value of Allen's prior bad driving was substantial, admission of that evidence was not prejudicial within the meaning of Evidence Code section 352. Allen's poor driving history, though considerable, was less provocative than the evidence relating to the charged offenses, which included the death and injury of other drivers and his decision to flee the scene. In addition, the driving history evidence established that Allen had already been held accountable by the justice system for much of his prior reckless and drunk driving, mitigating the possibility the jury might have sought to punish him for that prior conduct. Moreover, the trial court instructed the jury about the limitations on its use of Allen's driving history when deciding the question of his guilt on the murder charges. We presume the jury followed that instruction.
The evidence about Allen's prior bad driving and the attendant consequences also was not cumulative of the evidence presented about the Alert Driving school programs that Allen had attended. Although both components of the prosecution's presentation were relevant to Allen's knowledge of the risks created by his reckless and drunk driving, the evidence of Allen's prior bad driving and the resulting consequences is different than the evidence about Alert Driving's curriculum and the information imparted about the dangers of reckless and drunk driving. The former evidence is more comprehensive and personal to Allen, in that it shows how he had been specifically informed that his own particular and various bad acts were not acceptable and created a risk of harm to others. (See Ortiz, supra, 109 Cal.App.4th at p. 118 [a person" 'presumably becomes more and more aware of the danger'" resulting from motor vehicle violations upon repeated apprehension and conviction].) Additionally, there was considerable dispute at trial about the issue of implied malice, for which Allen's prior bad driving was highly relevant. Because the prior bad driving evidence was more personalized and unique to Allen than the generalized information provided by the Alert Driving instructors, Allen's driving history was not duplicative of the Alert Driving evidence. Thus, that evidence was not merely cumulative. (See Lang, supra, 49 Cal.3d at p. 1016.)
Likewise, there was no violation of Allen's constitutional right to due process. The admission here of substantially probative evidence about Allen's prior bad driving for a limited purpose was both appropriate and unexceptional, and it did not render his trial fundamentally unfair. (See Jones, supra, 57 Cal.4th at p. 949; see also People v. Lindberg (2008) 45 Cal.4th 1, 26; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
For these reasons, we conclude the trial court did not abuse its discretion in admitting the evidence of Allen's prior convictions and uncharged bad driving; we also decide no constitutional violation occurred.
B. Lack of Instruction on Gross Vehicular Manslaughter
Allen contends the jury should have been instructed on the uncharged crime of vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)). Allen acknowledges that our Supreme Court has held that gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) is not a lesser included offense of murder (People v. Sanchez (2001) 24 Cal.4th 983, 992 (Sanchez), overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229). He also concedes that "vehicular manslaughter is not a lesser included offense of second degree murder." Nonetheless, he claims that here-where the only element in dispute on the murder charges was whether he acted with implied malice or a less culpable state of mind-the failure to instruct on gross vehicular manslaughter unfairly left the jury with "an all-or-nothing choice" between convicting him of murder or "finding he committed no crime."
Section 192, subdivision (c)(1), defines gross vehicular manslaughter as follows: "Except as provided in subdivision (a) of [s]ection 191.5 [concerning gross vehicular manslaughter while intoxicated], driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 192, subd. (c)(1).)
We reject Allen's claim that the trial court should have instructed on gross vehicular manslaughter. Despite Allen's assertion to the contrary, the jury here was not faced with the all-or-nothing choice of convicting Allen of murder or relieving him of all culpability for the deaths of Durbin and Morse. Along with the option of convicting Allen for murder, the jurors were asked to decide whether Allen was guilty of hit and run driving resulting in the death of Durbin and Morse (counts 3 &4), in violation of Vehicle Code section 20001, subdivisions (a) and (b)(2). Although the hit and run driving counts were not presented to the jurors as alternatives to the murder charges, to convict Allen for hit and run driving on counts 3 and 4, the jurors had to find that Allen knew he had been involved in a vehicle accident that probably resulted in injury and "the accident caused the death of someone else." (See CALCRIM No. 2140.) Hence, counts 3 and 4 provided the jurors an option by which they could hold Allen accountable for the deaths of Durbin and Morse even if they acquitted him of murder. Allen's contention that omission of a gross vehicular manslaughter instruction presented the jury with an "all-or-nothing choice" ignores this fact.
Vehicle Code section 20001 provides in relevant part: "(a) The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004. [¶] . . . [¶] [(b)](2) If the accident described in subdivision (a) results in death or permanent, serious injury, a person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than 90 days nor more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine. However, the court, in the interests of justice and for reasons stated in the record, may reduce or eliminate the minimum imprisonment required by this paragraph." (Veh. Code, § 20001, subds. (a), (b)(2).)
Moreover, and more importantly, the district attorney here charged Allen with committing murder under section 187 (i.e., killing "unlawfully and with malice aforethought"), but not with gross vehicular manslaughter (§ 192, subd. (c)(1)). "This charging discretion is permitted as a result of the California Supreme Court's holdings in Watson, supra, 30 Cal.3d 290 [] and Sanchez, supra, 24 Cal.4th 983 [], and by statute." (People v. Wolfe (2018) 20 Cal.App.5th 673, 690; see also § 192, subd. (e).) "[A] trial court in a criminal case is required-with or without a request-to give correct jury instructions on the general principles of law relevant to issues raised by the evidence." (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) Additionally, a trial court has a sua sponte obligation to instruct on a lesser included offense if the evidence"' "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense." '" (People v. Moon (2005) 37 Cal.4th 1, 25.) However, no such instruction obligation applies here to gross vehicular manslaughter because (as Allen acknowledges) that crime is not a lesser included offense of the charged murders. (See People v. Bettasso (2020) 49 Cal.App.5th 1050, 1058-1059; Wolfe, at pp. 685-686; see also People v. Lopez (1998) 19 Cal.4th 282, 294.) Moreover, even assuming gross vehicular manslaughter is a lesser related offense of murder, a trial court cannot instruct on a lesser related offense without the prosecutor's consent. (See People v. Birks (1998) 19 Cal.4th 108, 136; People v. Rangel (2016) 62 Cal.4th 1192, 1230.) Here, the district attorney opposed any instruction on gross vehicular manslaughter.
Under these circumstances, we conclude that the trial court did not err when it declined to instruct the jury on the offense of gross vehicular manslaughter.
C. Limitation of Allen's Closing Argument
Allen contends the trial court improperly prohibited his trial counsel from using the elements of gross vehicular manslaughter in closing argument to assert that he lacked the mental state for murder. The Attorney General counters that the trial court's ruling was not an abuse of discretion and, regardless, any alleged error was harmless.
1. Background
During a discussion about the jury instructions, the trial court noted its inclination not to give any instruction on vehicular manslaughter. Nevertheless, the court indicated that it would likely let Allen's trial counsel "argue the kind of common-sense explanation that compared conscious disregard . . . of human life. . . with the negligence standard, the lesser standard for the vehicular manslaughter." The court also said that counsel could "argue it in those terms" but that the court did not "need to instruct in those terms." When the court and counsel later discussed the jury instructions again, the court reiterated its inclination to deny a defense request for instructions on involuntary manslaughter and vehicular manslaughter. Ultimately, the court did not instruct the jury on either of those offenses.
During closing argument, and just prior to a break in the proceedings, Allen's trial counsel sought to display CALCRIM No. 592 (CALCRIM 592), setting forth the elements of gross vehicular manslaughter. During the break, the prosecutor objected to trial counsel's effort, arguing that the display of CALCRIM 592 in its entirety was inappropriate because the jury was not getting that instruction and gross vehicular manslaughter is not a lesser included offense of murder. In addition, the prosecutor noted that the trial court had previously "stated it was a permissible argument for [trial counsel] to compare and contrast murder, implied malice, subjective conscious disregard for human life versus gross vehicular manslaughter, gross negligence, an objective standard, and essentially argue that the People's burden ha[d not been met because while Mr. Allen's conduct [was] objectively grossly negligent, he didn't subjectively appreciate the risk." The prosecutor agreed that such argument was "fair" and "totally permissible."
CALCRIM 592 provides in part: "To prove that the defendant is guilty of gross vehicular manslaughter, the People must prove that: [¶] 1. The defendant (drove a vehicle/operated a vessel); [¶] 2. While (driving that vehicle/operating that vessel), the defendant committed (a/an) (misdemeanor[,]/[or] infraction[,]/[or] otherwise lawful act that might cause death); [¶] 3. The defendant committed the (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might cause death) with gross negligence; [¶] AND [¶] 4. The defendant's grossly negligent conduct caused the death of another person. [¶] Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act." (CALCRIM 592.)
Trial counsel responded that she "wasn't planning on arguing this was a lesser." Rather, displaying CALCRIM 592 "was [counsel's] way of explaining the difference between the two [standards]," and she "thought this was a little less dry than reading through the CALCRIM."
The trial court stated that the display of CALCRIM 592 was "an inappropriate way to argue the case because it introduces the idea that there should be another charge, and that is perilously close to jury nullification." The court reiterated its view that trial counsel could "certainly talk in general" about the fact that "there are other standards in the law with the emphasis being that [the implied malice element of murder] is such a high standard," but counsel had to "reach that concept in [a] way that does not speak about gross vehicular manslaughter and does not indicate there's another possible charge." The court explained further that counsel could state that "[t]here are other kinds of standards of proof for people like other forms of negligence or other forms of recklessness." But the court would not allow counsel to "talk about it in the context of driving, and I'm not going to let you talk about it [in] general in the context of driving, so you certainly can't talk about it in the context of gross vehicular manslaughter."
When trial counsel resumed her closing argument, she told the jurors "that there are other standards of proof in the criminal justice system, other crimes that don't require you to consider what Mr. Allen was thinking that night as he was driving down the road on Camden. [¶] There are other standards that are what you call objective, that it matters what you were thinking of his driving as [the] trier of facts. [¶] And in this case this isn't one of those. In this case you have to consider what Mr. Allen was thinking at the time he was driving that night." Counsel then reiterated that "a murder conviction requires that [Allen] knew at the time he was driving that his conduct was dangerous and it could endanger human life. [¶] And that he didn't care if he, his friends, or someone else was hurt."
At the end of her closing argument, trial counsel asserted, "This was an accident. It was tragic and it was unfair. But you know what we don't do? [¶] We don't respond to unfairness with injustice. We don't do that, and justice here is not a murder conviction, ladies and gentlemen. Mr. Allen did not think people were going to die that night. [¶] And I'm asking you to find Mr. Allen not guilty on murder Count 1 and murder Count 2."
After the verdicts, Allen filed a motion for new trial in which he argued the trial court had improperly precluded his trial counsel from arguing that he was not guilty of murder but was instead culpable of the lesser offense of gross vehicular manslaughter. The district attorney opposed Allen's new trial motion. The trial court denied the motion, and Allen does not challenge that ruling on appeal.
2. Legal Principles
"Criminal defendants enjoy a constitutional right to have counsel present closing argument to the trier of fact. [Citations.] This right, however, is subject to certain limits. [Citation.] A trial court may impose reasonable time limits and may ensure that argument does not 'stray unduly from the mark.' [Citation.] Trial courts have broad discretion to control the duration and scope of closing arguments." (People v. Simon (2016) 1 Cal.5th 98, 147 (Simon).) Similarly, the Penal Code requires the trial court "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.)
We review a trial court's decision to limit defense counsel's closing argument for abuse of discretion. (Simon, supra, 1 Cal.5th at p. 147.) No abuse of discretion occurs when the court's limitation on defense counsel's argument has not precluded the defendant from conveying his or her primary defense. (Id. at p. 149; People v. Marshall (1996) 13 Cal.4th 799, 854 (Marshall).)
3. Analysis
We are not persuaded that the trial court improperly limited trial counsel's closing argument when it prevented counsel from specifically addressing the elements of gross vehicular manslaughter. As discussed ante (section II.B.), gross vehicular manslaughter is not a lesser included offense of murder, and the trial court did not err in declining to instruct on that offense. In turn, the trial court could preclude trial counsel from displaying the CALCRIM instruction and discussing the elements for gross vehicular manslaughter. On counts 1 and 2, the jury was asked only to find Allen guilty or not guilty of murder. Permitting counsel to use the elements of gross vehicular manslaughter (as set forth in CALCRIM 592) to argue against the murder charges might have confused or misled the jury about what it was supposed to decide. Accordingly, the court's decision to limit trial counsel's argument was a reasonable choice to restrict argument to relevant matters. (See § 1044; see also Marshall, supra, 13 Cal.4th at pp. 854-855; People v. Mendoza (1974) 37 Cal.App.3d 717, 725.)
Furthermore, Allen's trial counsel was not precluded from mentioning other mental states or arguing that the district attorney had not proved that Allen acted with implied malice. Counsel argued to the jury that "[j]ustice d[id] not allow a finding of proof beyond a reasonable doubt on [the implied malice] element." Counsel maintained that although Allen was "going too fast," he tried to "avoid an accident" and it was "reasonable to think that his behavior that night was trying to avoid someone getting hurt." Counsel argued further that the collision was a "tragic" "accident" and Allen "wasn't thinking" that someone could have been hurt by his conduct "because it had never happened before." Additionally, counsel explained that there were "other standards" in the criminal justice system and "other crimes" that did not require consideration of what Allen was thinking. Counsel concluded her argument by stating that Allen "did not think people were going to die" and asking the jury to find him not guilty on the murder counts. Thus, counsel was able to argue that at most Allen acted in a reckless manner that created a risk but did not know his conduct was dangerous to human life and did not act deliberately with conscious disregard for human life. The trial court's ruling preventing counsel from specifically comparing the elements of gross vehicular manslaughter and murder "did not preclude [Allen] from making his central point." (Marshall, supra, 13 Cal.4th 799 at p. 854.)
Allen relies on People v. Valentine (2006) 143 Cal.App.4th. 1383 and People v. Brown (2016) 6 Cal.App.5th 1074 (Brown) to contend that the trial court erred here. Neither case, however, compels such a conclusion. In Valentine, the Court of Appeal addressed the question whether the trial court had erroneously denied the defendant's request for a jury instruction on the lesser related offense of receiving stolen property to support his claim that while he had received stolen property, he did not steal it. (Valentine, at pp. 1386-1387.) The Valentine court disagreed with the defendant, concluding that the defendant was not entitled to an instruction on the lesser related offense and the denial of the requested instruction did not violate his right to present a defense because the commission of the lesser related offense of receiving stolen property was not a true defense to robbery. (Id. at pp. 1387-1388.) The court further stated, "We do not suggest, however, that [the defendant] could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery." (Id. at p. 1388.) Allen's reliance on that sentence is misplaced. The sentence does not support a conclusion that a trial court necessarily will abuse its discretion or violate a defendant's constitutional rights if it precludes defense counsel from discussing the particular elements of an uncharged lesser related offense that is not before the jury.
Similarly, in Brown, the defendant challenged the trial court's denial of his request for an instruction on forcibly inducing falsehood (§ 137, subd. (b)), a lesser related offense to the charged offense of dissuading prosecution (§ 136.1, subd. (b)(2)). (Brown, supra, 6 Cal.App.5th at pp. 1085-1086.) The defendant also claimed that the trial court erred by precluding his counsel from arguing that he was guilty under section 137, rather than under section 136.1, by referring to a case (People v. Womack (1995) 40 Cal.App.4th 926) that addressed the scope of those two crimes. (Id. at p. 1085.) The Brown court concluded that the defendant was not entitled to an instruction on forcibly inducing falsehood. (Id. at p. 1086.) In addition, the court stated that defense counsel was free to argue that, rather than having the intent required for the charged offense, the defendant only had the intent required for forcibly inducing falsehood. However, the defendant "simply could not discuss Womack or the separate crime of forcibly inducing falsehood." (Id. at p. 1088.) Contrary to Allen's contention, the conclusions of the Brown court support the trial court's ruling in the present case. Like the situation in Brown, the trial court here ruled that although trial counsel could not discuss the elements of the separate crime of gross vehicular manslaughter, counsel was free to discuss that there are "other kinds of standards of proof," such as "other forms of negligence or other forms of recklessness." Thus, Brown does not advance Allen's claim of error.
Based on this record, we conclude that the trial court did not abuse its discretion or violate Allen's constitutional right to the assistance of counsel when it prohibited Allen's trial counsel from displaying CALCRIM 592 or using the elements of gross vehicular manslaughter in closing argument.
D. Cumulative Prejudice
Having concluded that Allen's claims of error are without merit, we likewise reject his claim of cumulative prejudice. There is no prejudicial error to cumulate. (See People v. Hensley (2014) 59 Cal.4th 788, 818.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Wilson, J.