Opinion
B291028
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN MORAN, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA453703) APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Kevin Moran of hit and run driving causing death, hit and run driving causing great bodily injury, and second degree murder. (Pen. Code, § 187, subd. (a); Veh. Code, § 20001, subds. (b)(2) & (b)(1); all undesignated statutory references will be to the Penal Code.)
Moran contends the court improperly limited argument and excluded certain evidence of his intoxication at the time of the offenses, and his sentence violates section 654 and due process.
We affirm.
BACKGROUND
At around midnight on January 13, 2017, Moran and Kevin Cruz, a coworker, each purchased and drank two 32-ounce Redd's Wicked Apple Ale beverages. Twenty to 30 minutes after finishing the drinks, Moran drove Cruz at around 60 miles per hour through one red light and two stop signs without stopping, twice steering to the wrong side of the road to pass cars. When Cruz told Moran to calm down, Moran replied, "If God wants us to live, he's going to let us live. If not, fuck it, we go."
At around 3:30 a.m., Moran blew through a red light and struck a car driven by Folesha Iverson, who was chauffeuring Terrance Fitch. Iverson was killed and Fitch severely injured. Both Moran and Cruz fled the scene on foot.
At trial, the prosecution introduced evidence—Cruz's testimony—that Moran was voluntarily intoxicated at the time of the murder, but the court precluded Moran from introducing evidence that the level of his intoxication rendered him unable to form the conscious disregard for life necessary for implied-malice murder. The court also prohibited the defense from arguing Moran was guilty only of the related but uncharged crime of gross vehicular manslaughter.
The jury found Moran guilty of hit and run driving causing the death of Iverson, hit and run driving causing great bodily injury to Fitch, and the second degree murder of Iverson.
The trial court sentenced him to state prison for 15 years to life for the murder, imposed concurrent terms of three years and one year for the hit and run offenses, and ordered him to pay three $40 court security fees, three $30 criminal conviction assessments, a $300 restitution fine, and a $300 parole revocation fine, which was stayed.
DISCUSSION
A. Evidence of Intoxication
Moran contends the court violated his due process rights by prohibiting him from introducing evidence of voluntary intoxication to negate the intent element of second degree murder, while permitting the prosecution to introduce similar evidence to prove the element. We disagree.
"A conviction for murder requires the commission of an act that causes death, done with the mental state of malice aforethought (malice). [Citation.] Malice may be either express or implied. [Citation.] . . . Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses. . . . [¶] The law recognizes two degrees of murder. . . . A person who kills unlawfully with implied malice is guilty of second degree murder." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.)
It has long been the policy of this state that an act is not made less criminal because the actor committed it while voluntarily intoxicated. "[A] defendant who kills without express malice due to voluntary intoxication can still act with implied malice." (People v. Turk (2008) 164 Cal.App.4th 1361, 1378.) Voluntary intoxication "naturally lends itself to the crime's commission because it impairs the sound judgment or lowers the inhibitions that might stop a sober individual" from driving recklessly. (People v. Whitfield (1994) 7 Cal.4th 437, 463 (conc. & dis. opn. of Mosk, J.).)
Because intoxication may increase an individual's recklessness, the court properly admitted evidence of Moran's voluntary intoxication to establish he acted with conscious disregard for the risk his drinking and driving would pose to human life.
Moran argues that permitting only the prosecution and not the defense to introduce evidence of voluntary intoxication violated principles of reciprocity inherent in the Due Process Clause. No authority supports the argument, which has been rejected by many courts.
The first sentence of section 29.4 provides: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition." (§ 29.4, subd. (a).) Section 29.4 goes on to provide that "[e]vidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including . . . malice . . . ." (§ 29.4, subd. (a).)
Section 29.4 "is closely analogous to [the Legislature's] abrogation of the defense of diminished capacity." (People v. Martin (2000) 78 Cal.App.4th 1107, 1117.) It is based upon "a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited." (Ibid.)
The statute is not so much an evidentiary prescription as the embodiment of "a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions." (Montana v. Egelhoff (1996) 518 U.S. 37, 57 [116 S.Ct. 2013, 135 L.Ed.2d 361] (conc. opn. of Ginsburg, J.).) "Defining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a 'fundamental principle of justice,' given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today." (Id. at pp. 58-59.)
Section 29.4 thus permissibly precludes consideration of voluntary intoxication to negate implied malice and conscious disregard because the Legislature has decreed it to be irrelevant for that purpose. Nothing in the statute "deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt." (People v. Martin, supra, 78 Cal.App.4th 1117; see People v. Soto (2018) 4 Cal.5th 968, 977 ["evidence of voluntary intoxication is not admissible . . . to prove that defendants did not know of the danger they were creating by their actions, or that they did not consciously disregard that danger"]; People v. Atkins (2001) 25 Cal.4th 76, 93 [rejecting the claim that former section 22, the precursor to section 29.4, violated due process]; People v. Timms (2007) 151 Cal.App.4th 1292, 1301 [same].)
Pursuant to the plain meaning of and policy behind section 29.4, the trial court properly excluded Moran's evidence of voluntary intoxication to negate the mens rea for second degree murder.
B. The Trial Court Permissibly Limited Defense Argument
Before and during trial, Moran's counsel contended he should be permitted to argue to the jury that although Moran killed someone, and the killing was a homicide, it was not murder but the uncharged related offense of gross vehicular manslaughter. The trial court denied the request. Moran's counsel ultimately argued generally to the jury that although Moran had committed a homicide, it did not amount to murder.
Moran contends he should have been permitted to argue his conduct constituted only vehicular manslaughter, and further contends, for the first time on appeal, that the trial court should have instructed on vehicular manslaughter. We disagree with both contentions.
We review a trial court's ruling limiting defense counsel's closing argument for abuse of discretion. (People v. Simon (2016) 1 Cal.5th 98, 147.)
Moran essentially argues he should have been permitted to tell the jury he was guilty of an offense that was not charged or contained on the verdict forms, and on which the jury was not instructed. No authority of which we are aware permits a defendant to discuss during closing argument uncharged related offenses. A court could reasonably conclude that such an argument would only confuse the jury at best, or at worst urge it to disregard the relevance of the charged offenses and exercise its own judgment as to what crime should have been charged.
We further conclude the trial court correctly refused to instruct the jury on the related offense of gross vehicular manslaughter. (See People v. Birks (1998) 19 Cal.4th 108, 137 [a court need not give a requested instruction a related offense to which the prosecution has not consented].) Gross vehicular manslaughter is not a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 992.)
C. Imposition of Concurrent Sentences on Counts 2 and 3 Did Not Violate Section 654
Moran contends that his sentence for the hit and run driving resulting in Iverson's death and the hit and run driving resulting in injury to Fitch violates section 654's ban against multiple punishment for the same act. We disagree.
Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. . . . [¶] On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551-552.)
Even if a defendant harbored a single objective during an indivisible course of conduct, he or she may be convicted and punished for each crime of violence committed against a different victim. (People v. Miller (1977) 18 Cal.3d 873, 876; People v. Deegan (2016) 247 Cal.App.4th 532, 542.)
Here, Moran committed two distinct criminal acts: He murdered Iverson and he fled the scene of a car accident.
The hit-and-run statute, Vehicle Code section 20001, targets "not the hitting but the running." (People v. Campbell (2017) 12 Cal.App.5th 666, 674; see People v. Escobar (1991) 235 Cal.App.3d 1504, 1509 ["The gravamen of [Vehicle Code] section 20001 . . . is leaving the scene [of an accident] without presenting identification" or aiding the victim].) Multiple punishment is not barred under section 654 where a defendant causes a fatal accident while driving while intoxicated, and separately leaves the scene of the accident. (See also People v. Butler (1986) 184 Cal.App.3d 469, 473-474 [punishment for both voluntary manslaughter and hit and run is permissible under section 654 because the crimes involved separate intents and objectives—negligent driving causing a fatality and leaving the scene of an accident].)
Moran's sentences for the hit and run offenses were thus properly added to his sentence for the murder conviction.
D Court-Imposed Assessments and Fines Did Not Violate Due Process
The trial court imposed several fines and fees without a hearing to determine Moran's ability to pay them. Moran argues that imposition of these fines and fees was unconstitutional absent such a hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas). We disagree.
Due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or if the defendant's crimes were driven by poverty. (People v. Hicks (2019) 40 Cal.App.5th 320, 329; see People v. Caceres (2019) 39 Cal.App.5th 917 [declining to apply Dueñas's "broad holding" beyond its "unique facts"].)
Here, imposition of assessments and fees in no way interfered with Moran's right to present a defense at trial or to challenge the trial court's rulings on appeal; they were imposed after trial. And Moran's crimes—unlike Mrs. Duenas's multiple convictions for driving without a license she could not afford—were not driven by poverty. The court therefore did not violate his due process rights by imposing the assessments and restitution fine without first ascertaining his ability to pay them.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
BENDIX, J.