Opinion
E044684
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. GIOVANNI ESEQUIEL MARTINEZ, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
A jury found defendant guilty of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), as a lesser included offense of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). Defendant was sentenced to the upper term of six years in state prison. On appeal, defendant contends (1) the trial court prejudicially erred when it failed to instruct the jury that gross negligence requires conscious indifference to the consequences of his actions; (2) the trial court erred when it failed to instruct the jury on "accident"; (3) the prosecutor committed misconduct during closing argument; (4) imposition of the upper term violated his constitutional rights to a jury trial and proof beyond a reasonable doubt; (5) application of the new determinate sentencing law violates the constitutional principles of the ex post facto clause; and (6) People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) violates the equal protection clause by requiring resentencing under the amended determinate sentencing law. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 2004, defendant; his friend Erik Salazar; and Eriks cousin, David Fragoso sat in defendants vehicle and drank some beers. After about 15 to 20 minutes, Eriks best friend, Peter Lopez, joined them and also drank some beers. They sat in defendants vehicle and had between three and six beers each over the course of one to two hours.
Sometime later that evening, they drove to Eriks house to pick up Eriks brother, Victor Salazar. They were planning on going to a nightclub that evening. About 20 to 30 minutes later, they left the Salazar residence in three different vehicles. Defendant and Erik were in defendants Toyota 4Runner with defendant driving; Lopez and Fragoso were in another; and Victor was driving by himself.
All three cars stopped for a red light at an intersection; defendant was first, followed by Victor, and then Lopez and Fragoso. While at the intersection, a Honda Civic with a loud exhaust pulled up next to them. When the light turned green, the Honda sped off, and defendant quickly accelerated as though he were trying to catch up to the Honda. Victor opined that defendant and the Honda were initially driving 50 to 60 miles per hour. Fragoso estimated that Lopez was driving between 45 and 50 miles per hour and noticed that defendants car was pulling away from them. Lopez believed he was driving between 60 and 65 miles per hour in an attempt to catch up to defendant. Both cars stopped at one stop sign but then ran the next stop sign. Victor estimated that, between the first and second stop signs, the cars were driving 65 to 70 miles per hour. At trial, Fragoso testified he believed defendant was traveling 70 miles per hour, but on the night of the incident, he told a deputy sheriff that defendant was driving between 45 and 50 miles per hour.
At one point, the road only had one lane of traffic in each direction. Defendant, in an attempt to pass the Honda, entered the opposite traffic lane, driving between 70 and 85 miles per hour. About five seconds later, defendant hit the brakes; the car swerved back and forth and ultimately flipped over. Fragoso lost sight of defendants car at one point, and the next thing he saw was defendants car flipped over at the accident scene.
Victor stopped and found defendants car in a dirt field; defendant and Erik were in the dirt. Erik was bleeding from his head, mouth, and nose. Erik died that night.
To Victor, it appeared that the cars were racing. Victor and Lopez did not recall seeing the Honda cut defendant off and did not remember telling a deputy sheriff that that was what had happened.
Lopez also believed that the cars were racing. Lopez recalled telling a deputy sheriff that defendant was driving between 60 and 65 miles per hour. Lopez explained that if he had stated that the Honda had cut defendant off, it was because he was trying to cover up for defendant, as they were friends. Lopez felt the need to cover up his own actions as well, because he was underage and had been drinking and driving. He had told the deputy that he had not been drinking and that he was driving a friend home.
San Bernardino County Sheriffs Deputy Steven Lawyer was dispatched to the scene around 10:59 p.m. When he arrived, he saw defendant and Erik lying on the ground injured. The deputy spoke with defendant and smelled alcohol on his breath. Moments earlier, Lopez had told the deputy that he saw a car cut defendant off. The deputy asked defendant whether he had lost control when the car cut him off; defendant responded in the affirmative. Anothers sheriff deputy interviewed Victor, and Victor told him that he was not sure what had happened but that he believed the Honda had cut defendant off.
Defendants blood was drawn at 11:20 p.m.. His blood alcohol content was .076 percent on the first test and .077 on the second test.
Deputy Richard Daniel, an accident reconstruction expert, also went to the crash site and saw defendants car resting on its roof in a dirt field. He also found gouge marks in the road, a broken antenna, beer bottles, a sunroof, a windshield, and clothing scattered about the scene. Based on expert techniques, Deputy Daniel calculated defendants speed at between 85 and 91 miles per hour. The deputy also opined, based on the pattern of the skid marks, that another plausible explanation for the rollover was that defendant was attempting to pass another car, entered the oncoming traffic lane, and then oversteered or overcorrected when he moved back into his lane.
In a statement to a detective, defendant stated that he had tried to pass another vehicle and had accelerated in an attempt to do so; the next thing he remembered was waking up in a lot of pain. Defendant did not claim the other car had cut him off but simply that the other car had accelerated as he tried to pass. He claimed to be driving the speed limit and could not remember why he needed to pass the other car. There were two posted speed limit signs in close proximity to where defendant had rolled the car — both indicated a 45 mile per hour speed limit — and a double yellow line in the vicinity of the accident. The detective opined, based on witness statements, the reports he had reviewed, and the physical evidence he had observed at the scene, that defendant was driving at a high rate of speed; his car left the roadway on the right and went onto the dirt shoulder, and when it came back onto the roadway, defendant overcorrected and lost control, and the car began to roll. He believed that the primary cause of the collision to be driving on the shoulder and driving at an unsafe speed for the conditions at that location.
II
DISCUSSION
A. Instructions on Gross Negligence
Defendant contends the trial courts instructions to the jury defining gross negligence did not require the jury to find an essential element of the crime: that he acted with conscious indifference to the consequences of his actions. He argues that this error, in combination with the trial courts refusal to instruct on the defense of accident and the prosecutors alleged misstatements of the law during closing argument, deprived the jury of the opportunity to find defendant acted with ordinary negligence.
1. Additional factual and procedural background
During the jury instruction conference, defendant requested the court to give Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 510, the instruction on the defense of accident. The prosecutor objected, noting that the instructions use notes indicated it was to be given in conjunction with the instructions for voluntary and involuntary manslaughter and that the instruction was not intended to be given in a vehicular manslaughter case. The trial court reasoned that the jury would be fully instructed on the meaning of gross negligence and ordinary negligence and found that the word "accident" might confuse the jurors in the context of this case, where defendant did not intend to kill anyone, but ended up doing so in what "would classically be termed a `car accident." The court therefore declined to give CALCRIM No. 510. In further discussions concerning the instruction, the court also noted there was insubstantial evidence to show defendant was doing a lawful act in a lawful way when the death occurred.
There were no discussions about the instructions defining the degree of negligence. In its instruction to the jury on gross vehicular manslaughter while intoxicated, the trial court defined gross negligence as follows:
"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 the way 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. [¶] The combination of driving a vehicle while under the influence of an alcoholic beverage and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendants intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendants conduct."
The court also instructed the jury, "A person facing a sudden and unexpected emergency situation not caused by that persons own negligence is required only to use the same care and judgment that an ordinarily careful person would use in the same situation, even if it appears later that a different course of action would have been safer."
The courts instruction on vehicular manslaughter with ordinary negligence explained, "Ordinary negligence, is the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation . . . ."
After deliberating for two and a half days, the jury sent the court a note stating it was "at a standstill at achieving a unanimous vote on any one verdict." The court asked the jury whether any further instructions would assist in resolving the issues it had. The foreperson advised that the most significant problem the jury had was the difference between gross negligence and ordinary negligence and believed that further clarification of those terms might be helpful.
Outside the presence of the jurors, initially, all parties agreed that the standard instructions adequately defined both types of negligence. The parties then agreed that it might be helpful to read CALJIC No. 8.91, defining vehicular manslaughter with ordinary negligence, and CALJIC No. 8.46, defining due caution and circumspection. To avoid confusing the jury, the court decided to replace the phrase "without due caution and circumspection" in CALJIC No. 8.46 with "gross negligence." Both counsel agreed with the courts solution.
The court then read the new instruction on ordinary negligence to the jury as follows:
"Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under similar circumstances. [¶] It is the failure to use ordinary or reasonable care. [¶] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances."
In relevant part, the court instructed the jury with the new instruction on gross negligence as follows: "Gross negligence means conduct which is more than ordinary negligence. The term `gross negligence refers to negligent acts which are aggravated, reckless and flagrant and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen. It must also appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act. [¶] In determining whether a result is natural and probable, you must apply an objective test. It is not what the defendant actually intended, but what a person of reasonable and ordinary prudence would have expected likely to occur. The issue must be decided in light of all the circumstances surrounding the incident. . . ."
That same day, the jury returned a verdict, finding defendant guilty of the lesser included offense of gross vehicular manslaughter. (§ 192, subd. (c)(1).)
2. General legal principles
The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty `to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.)
3. Definition of gross negligence
For the first time on appeal, defendant claims the courts instructions defining gross negligence were flawed because they fail to include the word "conscious" before the words "indifference to the consequences," and therefore the court failed to advise the jurors of the essential element of gross negligence. His assertion is meritless.
As noted above, the jury was instructed on the meaning of gross negligence under CALCRIM No. 590 and CALJIC No. 8.46.
It is well established that "`[g]ross negligence has been repeatedly defined in the California cases as "the want of slight diligence," "an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the things and welfare of others," and "that want of care which would raise a presumption of the conscious indifference to consequences." [Citations.]" (People v. Costa (1953) 40 Cal.2d 160, 166.) CALJIC No. 8.46, as worded, embodies these elements by requiring "acts which are aggravated, reckless or flagrant[,]" and that the defendant act in a manner which is contrary to a proper regard "for human life" or with "indifference to the consequences of those acts." CALJIC No. 8.46 also provides that gross negligence will not be found if the "death was . . . the result of inattention, mistaken judgment or misadventure."
Contrary to defendants arguments otherwise, acting with recklessness and indifference requires conscious choice and the limitations of CALJIC No. 8.46 for "inattention, mistaken judgment and misadventure" necessarily cover situations where a defendant is not conscious of his conduct. We therefore cannot find that CALJIC No. 8.46 does not accurately state the law. (See People v. Warren (1988) 45 Cal.3d 471, 487.)
We note CALCRIM No. 5.90 also accurately stated the law. The plain meaning of "indifference" connotes an awareness or a consciousness. In other words, the plain meaning of the phrase "indifference to the consequences" connotes that the defendant is aware that his actions may carry consequences, but does not care. The word "indifference" does not imply a lack of knowledge or consciousness. The notion of awareness of the consequences was implied by the language of CALCRIM No. 590, distinguishing indifference from "ordinary carelessness."
Moreover, defendant has not shown there is any "reasonable likelihood" that the jury misunderstood the instruction as given or interpreted it as he suggests to convict him without finding he was conscious of his actions. (See People v. Kelly (1992) 1 Cal.4th 495, 525.) Nor has he shown that the instruction, without the word "conscious" modifying indifference, denied him due process or his right to a fair jury trial. Defendant again simply fails to appreciate that whether he was conscious or knew that the Honda had cut him off when he tried to merge back into his lane was basically irrelevant to whether his driving was reckless and constituted gross negligence. No instructional error in CALCRIM No. 590 and CALJIC No. 8.46 is shown.
Defendants reliance on People v. Bennett (1991) 54 Cal.3d 1032 (Bennett) and the other cognate cases cited in defendants briefs is misplaced. The requirement that the defendant has acted with gross negligence was discussed in Bennett, in which Bennett argued on appeal that the trial court had erred by instructing the jury that it could find gross negligence from either the manner in which he drove, or "`the overall circumstances of [Bennetts] intoxication," or both. (Id. at p. 1034.) The Supreme Court concluded that the instruction had been correct.
The Supreme Court reasoned that "[g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] `The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I dont care what happens." [Citation.] The test is objective: whether a reasonable person in the defendants position would have been aware of the risk involved. [Citation.]" (Bennett, supra, 54 Cal.3d at p. 1036.) The Supreme Court rejected Bennetts argument that "only his `driving conduct at the time of the traffic accident, not his level of intoxication, is relevant to determining gross negligence," reasoning "that a drivers level of intoxication is an integral aspect of the `driving conduct. . . . `One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, . . . reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal . . . . [Citation.] [¶] The jury should therefore consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citation.]" (Id. at p. 1038.)
In this case, the trial court, without objection or alternative suggestion by either side, gave the jury two instructions on gross negligence, as noted above. The court gave CALJIC No. 8.46, which is similar to CALJIC No. 3.36. CALJIC No. 3.36 had been given in the Bennett case. The court here also instructed the jury with CALCRIM No. 590, in essentially the words of CALJIC No. 8.94 as amended to incorporate language recommended in Bennett, supra, 54 Cal.3d at page 1039, that "`[t]he mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. [¶] You must determine gross negligence from the level of the defendants intoxication, the manner of driving, or other relevant aspects of the defendants conduct resulting in the fatal accident." (Fn. omitted.)
CALJIC No. 3.36 provides, "`Gross negligence means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care. [¶] `Gross negligence refers to a negligent act which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person, under the same circumstances, as to be contrary to a proper regard for human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent act could reasonably have been foreseen and it must appear that the death was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act."
We are satisfied that the instructions the trial court gave were sufficient to define gross negligence for the jury in a manner consistent with the Supreme Courts analysis in Bennett and cognate cases. In common English usage the word "indifference," when related to a particular fact, plainly connotes awareness, and in this sense consciousness, of the fact. Thus an individuals "indifference to consequences" means, in common usage, that the individual is aware at least that there may be consequences but does not attach significance to what the consequences may be. In words Bennett quoted from People v. Olivas (1985) 172 Cal.App.3d 984, such an individual might be deemed to take the position that "I dont care what happens." (Bennett, supra, 54 Cal.3d at p. 1036.) Conversely, one cannot (in common English usage) be "indifferent" to that of which he or she is unaware, which is to say of which he or she is not conscious. These perceptions underlie, in CALJIC No. 8.46 as the trial court gave it, the requirement that the consequences "could reasonably have been foreseen" and the implicit distinction between indifference and "inattention, mistaken judgment or misadventure," none of which necessarily connotes awareness. In short, the word "conscious," although it might help assure that a listener or reader will understand the word "indifference," in fact adds nothing to the meaning of "indifference."
We also reject defendants argument that the trial court should have used the word "conscious" due to the fact that defendant failed to request that the instruction be so modified. "It is well settled the trial court has no sua sponte duty to give amplifying instructions in the absence of a request if the terms used in the instructions given are `commonly understood by those familiar with the English language; while it does have such a duty where the term has a `technical meaning peculiar to the law. [Citation.]" (People v. Hill (1983) 141 Cal.App.3d 661, 668; cf. People v. Anderson (1966) 64 Cal.2d 633, 640.) We believe the term "gross negligence" does not have a technical meaning peculiar to the law, but in our view addition of the word "conscious" would tend at most to amplify, or clarify, the word "indifference" (a commonly understood word of no particular technical meaning) and would have no substantial tendency to clarify the concept of "gross negligence." Thus we conclude that in any event the trial court had no duty to add the word "conscious" to its instruction on its own motion.
B. Failure to Instruct on Accident
Defendant next contends the trial court erred in denying his request to give an instruction on accident. We disagree.
The trial court has a duty to instruct "on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jurys understanding of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) This includes the duty to give instructions concerning defenses on which the defendant relies or which are not inconsistent with the defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The trial court has no duty to instruct on a defense that is not supported by substantial evidence. (People v. Middleton (1997) 52 Cal.App.4th 19, 33; People v. Bohana (2000) 84 Cal.App.4th 360, 370.) "[A] trial courts duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . aris[es] `only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 195.) Among those incapable of committing crimes are persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. (People v. Thurmond (1985) 175 Cal.App.3d 865, 871.)
Here, there was no evidence to suggest the car driven by defendant rolled over by accident or without any negligent conduct on defendants part. Despite the jurys verdict acquitting defendant of gross vehicular manslaughter while intoxicated, the undisputed evidence showed that after the collision, defendants blood alcohol level was over .07 percent. In addition, each of the eyewitnesses testified that defendant was driving well over the 45-mile-per-hour speed limit. Victor and Fragoso estimated defendant was driving 70 miles per hour, and Lopez estimated 85 miles per hour. The accident reconstruction expert opined, based on the physical evidence, that defendant could have been driving as fast as 91 miles per hour. Though Lopez had informed the investigating deputy that the Honda had cut defendant off, Lopez explained that he stated that to avoid defendant getting into trouble. Victor was adamant at trial that the Honda had not cut off defendant. Both Victor and Lopez believed defendant was street racing the Honda when the car rolled over, resulting in the victims death. Additionally, there was no evidence to suggest defendant had applied his brakes to avoid a collision. To the contrary, the accident reconstruction expert testified that the skid marks at the scene were inconsistent with braking and consistent with losing control of the car due to an aggressive turning maneuver. Even if the Honda had cut off defendant and contributed to the collision, there was no evidence to show that defendant was doing a lawful act in a lawful manner. There was no evidence that defendant was driving within the speed limit.
This case is also distinguishable from People v. Acosta (1955) 45 Cal.2d 538 (Acosta), cited by defendant. In Acosta, the defendant challenged his conviction of driving or taking an automobile without the consent of the owner in violation of Vehicle Code section 503. Defendant claimed his driving of a taxicab came about by accident when the cab driver jumped out and abandoned the vehicle. (Acosta, at p. 543.) The prosecutions evidence showed that the defendant, in the backseat of a taxi, reached into the front seat and assaulted the driver, who slowed the cab down, opened the door and rolled out. Others on the highway observed the passenger get into the drivers seat and the vehicle accelerate, run a red light and hit another vehicle, and a witness observed the defendant in the front of the cab when it came to rest. The defendant testified, however, that he did not hit the driver or get into the front seat but rather attempted to steer the cab by reaching from the backseat. (Id. at p. 540.) The California Supreme Court found the trial court erred in refusing defendants requested instruction on the defense of accident. According to the court, even if the jury disbelieved his testimony that he did not get into the front seat, it could have found the apparent "driving" of the car "was not with intent to drive or take it but was the mere unintended, confused result of the peculiar situation in which defendant found himself. For example, the jury could have found that defendant tried to stop the car and through ignorance or mistake put his foot on the accelerator instead of the brake." (Id. at pp. 543-544.)
Here, on the other hand, there was no affirmative evidence of the defense presented. There was evidence in Acosta from which a reasonable juror could have concluded that the defendant lacked criminal intent and acted as he did by accident. Such evidence is lacking in the present case. In fact, defendants statements showed that he was acting unlawfully. There was no evidence that the car rolled over by accident.
In any case, we are convinced there is no reasonable probability the jurors would have reached a different conclusion if the accident instruction had been given. (See People v. Breverman, supra, 19 Cal.4th at p. 178.) The concept of accident was adequately covered by other instructions. (See CALJIC No. 8.46 and CALCRIM No. 592.) The jury was instructed with CALCRIM No. 592, explaining that gross negligence "involves more than ordinary carelessness, inattention or mistake in judgment." The jury was also instructed with CALJIC No. 8.46 that it could not find defendant guilty of gross vehicular manslaughter unless it concluded the victims death "was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless, or grossly negligent act." (See People v. Velez (1983) 144 Cal.App.3d 558, 567-568 [omission of accident instruction was partially remedied by giving of CALJIC No. 8.46].) The court also instructed the jury with CALCRIM No. 593 that the jury could instead find defendant guilty of the lesser crime of vehicular manslaughter with ordinary negligence, and defined the concept of ordinary negligence. Thus, by convicting defendant of gross vehicular manslaughter and rejecting the lesser alternative of ordinary negligence, the jury necessarily found that defendants actions were more than ordinary carelessness, inattention, mistake, or misfortune. Furthermore, based on the evidence adduced at trial, there is virtually no chance a juror, viewing the evidence as a whole, would have believed the victims death accidental.
C. Prosecutorial Misconduct
Defendant next contends the instructional errors were compounded by the prosecutors misstatements of applicable law during closing argument, resulting in a miscarriage of justice.
Defendant points to the following instances during closing argument where he believes the prosecutor committed misconduct:
At the outset, the prosecutor told the jury it had to decide between two options: whether defendant acted with gross negligence or the crash was "just an accident."
On the subject of gross negligence, the prosecutor told the jury, "In order to show the gross negligent [sic], you have to find that he committed at least one of these following misdemeanors, infractions, or otherwise lawful acts that might cause death. The key thing is any one of these will do."
Commenting on the charged offense and the lesser included offense, the prosecutor stated, "Realistically, this first lesser gross vehicular manslaughter is the only other plausible verdict other than the charged offense. . . . [¶] . . . Theres absolutely zero room for doubt about whether he was grossly negligent."
In final summation, the prosecutor remarked that if the jurors found defendant was not under the influence, it would "have to say" "the crash that occurred was just a coincidence." The prosecutor also commented on the Honda, noting "it does not matter what the Honda did."
"`Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Haskett (1982) 30 Cal.3d 841, 866, quoting People v. Strickland (1974) 11 Cal.3d 946, 955.) A prosecutor has a duty to prosecute vigorously and, "`while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." (People v. Pitts (1990) 223 Cal.App.3d 606, 691.)
But, "`a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Clair (1992) 2 Cal.4th 629, 662.) The reason for this rule, of course, is that "the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury." (People v. Simon (1927) 80 Cal.App. 675, 679.) The rule is inapplicable where the harm could not have been cured. (People v. Clair, supra, at p. 662.) It is an exceptional case, however, where the effect of the improper subject matter cannot be removed by a courts admonition. (People v. Pitts, supra, 223 Cal.App.3d at p. 692.)
Here, defense counsel never objected to any statement, including each of the above referenced statements. There is no indication that the trial court would have failed to take appropriate action or an objection would have been futile. Defendants claims are therefore not reviewable on appeal. (People v. Mayfield (1997) 14 Cal.4th 668, 753.)
In any event, we find defendants challenges meritless. There is no evidence to suggest the prosecutor misstated the law, but vigorously argued to the jury that there was no evidence to support the lesser included offense based on ordinary negligence. In addition, taking the prosecutors entire argument, the prosecutors challenged statements did not misinform the jury, as defendant suggests. (See People v. Lucas (1995) 12 Cal.4th 415, 475 [prosecutors statements must be viewed in light of the argument as a whole].) In addition, the prosecutors use of the word "accident" without an instruction on the defense neither amounted to misconduct nor created confusion for the jury. Defendants arguments to the contrary are unavailing.
Furthermore, we do not find that defendant was prejudiced by any of the prosecutors comments. We will not reverse a criminal conviction for prosecutorial misconduct unless the defendant was prejudiced. (People v. Warren (1988) 45 Cal.3d 471, 480.) The jury was properly instructed that the statements of counsel were not evidence (CALCRIM No. 222), that it was the duty of the jury to determine the facts based on all the evidence (CALCRIM No. 223), and that the People have the burden of proof (CALCRIM No. 220), and they were also given instructions on gross negligence and ordinary negligence (CALCRIM Nos. 590, 592, 593; CALJIC No. 8.46). It is presumed the jury understood and followed the courts instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Finally, defendant argues that the cumulative impact of the instructional errors as noted above and the prosecutors misconduct deprived him of a fair trial. We disagree. We have either rejected defendants claims of error or found any errors, assumed or not, to be not prejudicial on an individual basis. Assuming any error, and viewing the errors as a whole, we conclude that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
D. Upper-Term Sentence
In sentencing defendant to the upper term of six years for gross vehicular manslaughter, the trial court reasoned as follows: "And the Court is not considering the alcohol that was involved. But given the nature of the offense, the fact that there [was] street racing involved, the fact that there was oncoming traffic, the fact that this occurred in a residential area with a lot of homes, that it involved speeds over 90 miles an hour, that it involved passing through several stop signs, giv[en] all the evidence in this case, [the] Court does feel that this is more egregious than some other cases in which there is manslaughter with gross negligence. And particularly to the Court is the fact that this was a race. This was not just an illadvised pass on a two-lane highway over double-yellow lanes; the fact that this was a prolonged street race between two cars in a residential area that increased the risk to everyone around not just to the passengers in the car, the Court does feel that this is—does carry the greatest weight with the Court. [¶] In addition, to the fact that [defendant] had been cited since 2002, going back several times for no seat belts, for speeding, and that he continued to do so even after this incident, indicates to the Court that the defendant does deserve the maximum punishment in this case."
Relying on Cunningham v. California (2007) 549 U.S. 270 , Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, defendant contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by defendant or found true by the jury beyond a reasonable doubt.
At the time defendant was sentenced, on November 27, 2007, the sentencing scheme in effect was the version of the determinate sentencing law (DSL) that the Legislature amended effective March 30, 2007 (§ 1170, as amended by Stats. 2007, ch. 3, §§ 2, 7) in response to Cunningham. The amendment makes three basic changes to the procedure for imposing a term of imprisonment. First, the middle term is no longer the presumptive term. Second, the trial court has broad discretion to impose the lower, middle, or upper term based upon a specified standard, i.e., that which "best serves the interests of justice." Third, the trial court need only set forth its reasons, but not facts, for imposing the lower, middle, or upper term. (§ 1170, subd. (b).) The trial courts "sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an `individualized consideration of the offense, the offender, and the public interest." (Sandoval, supra, 41 Cal.4th at p. 847.)
Defendant acknowledges that the trial court had the discretion to impose the upper term under the amended statutory scheme. Here, pursuant to Sandoval, the trial court properly sentenced defendant to the upper term. We do not find the court acted in an arbitrary or capricious manner, but exercised its discretion consistent with the "spirit of the law." (Sandoval, supra, 41 Cal.4th at p. 847.) The court gave well thought out reasons for imposing the upper term and properly considered the public safety involved, the offense, and the offender.
E. Ex Post Facto
Defendant acknowledges that we are bound by Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nonetheless raises as an issue the legitimacy of the holding and rationale of Sandoval to preserve those issues for further review. He argues that applying the amended DSL to him would violate the due process and the ex post facto clauses of the federal Constitution. The California Supreme Court in Sandoval, although not directly deciding the ex post facto and due process issues, nonetheless concluded "that the federal Constitution does not prohibit the application of the [Senate Bill No. 40] revised sentencing process . . . to defendants whose crimes were committed prior to the date of [this] decision . . . ." (Sandoval, supra, 41 Cal.4th at p. 857.)
The court noted that a law violates the ex post facto clause only if it applies to events occurring before its enactment in a manner that substantively disadvantages the offender. (Sandoval, supra, 41 Cal.4th at pp. 853-854.) The amended DSL does not significantly disadvantage the offender because "the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to — and would not be expected to — have the effect of increasing the sentence for any particular crime. Indeed, as applied to cases such as this one, in which defendant already has been sentenced to the upper term under the version of the DSL in place at the time she committed the offense, application of the revised sentencing scheme never could result in a harsher sentence and affords the defendant the opportunity to attempt to convince the trial court to exercise its discretion to impose a lower sentence. . . . Moreover, . . . the difference in the amount of discretion exercised by the trial court in selecting the upper term under the former DSL, as compared to the scheme we adopt for resentencing proceedings, is not substantial." (Id. at p. 855.) Therefore, applying the procedural terms of Senate Bill No. 40 to sentencing for crimes committed before the passage of Senate Bill No. 40 violates no principle of ex post facto protection, as it is a judicial procedure deemed necessary to comply with constitutional principles. (Sandoval, at p. 855.)
Sandoval applied the terms of Senate Bill No. 40 to its case, although the crime in that case occurred before the passage of that amendment. (Sandoval, supra, 41 Cal.4th at p. 845.) Thus, courts faced with sentencing after Senate Bill No. 40 became effective must apply the terms and procedures in Senate Bill No. 40. Here, defendant was sentenced on November 27, 2007, well after Senate Bill No. 40 became effective and after Sandoval affirmed the validity of that law. (Sandoval, supra, 41 Cal.4th 825.) We therefore must reject defendants request to disregard the holding and rationale of Sandoval. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
We note Sandoval also indicates that there is no due process problem with sentencing a defendant under the amended DSL, even if the defendant committed the crime before the amendment. Sandoval explains that where the criminal statute at issue specifies the maximum sentence that may be imposed, such notice affords a defendant sufficient warning for due process purposes. (Sandoval, supra, 41 Cal.4th at p. 857.) At the time defendant committed his crime in 2004, gross vehicular manslaughter carried a sentencing range of two, four, or six years in state prison. (§ 192, subd. (c)(1).) Defendant was therefore on notice that he could be sentenced to six years for the crime.
F. Equal Protection Clause
We also reject defendants contention that the amended DSL violates the equal protection clause. At the same time, defendant recognizes we are bound by the Supreme Courts decision in Sandoval under principles of stare decisis. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Indeed, we are constitutionally obliged to "accept the law declared by courts of superior jurisdiction"; "[i]t is not [our] function to attempt to overrule decisions of a higher court." (Ibid.) Therefore, we must affirm the judgment and continue to follow Sandoval until such time as it is abrogated or overruled.
III
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.