Opinion
D072844
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. FLAVIO ERNESTO MUNOZ, Defendant and Appellant.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1500736) APPEAL from a judgment of the Superior Court of Riverside County, Mac R. Fisher, Judge. Affirmed. David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found Flavio Ernesto Munoz guilty of second degree murder (Pen. Code, § 187, subd. (a); count 1). In a separate proceeding, Munoz pleaded guilty to driving without a valid driver's license (Veh. Code, § 12500, subd. (a); count 2). The court sentenced him to an indeterminate term of 15 years to life in prison for the second degree murder conviction and a concurrent determinate term of six months for the driving without a valid driver's license conviction.
Munoz appeals, contending we must reverse his second degree murder conviction because the court did not instruct the jury on the lesser uncharged offenses of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He also contends we must reverse the second degree murder conviction because CALCRIM No. 520 (CALCRIM 520), the standardized instruction the court used to instruct the jury on the offense, did not adequately inform the jury of the requirements for the offense's implied malice element. Finally, he contends the court violated Penal Code section 654, subdivision (a), by not staying the sentence for the driving without a valid driver's license conviction because the conviction was based on the same act as the second degree murder conviction.
We conclude the court had no duty to instruct on gross vehicular manslaughter or gross vehicular manslaughter while intoxicated because neither offense is a lesser included offense of second degree murder. We further conclude the Supreme Court has repeatedly approved the language used in CALCRIM 520 to inform the jury of the requirements for the implied malice element of second degree murder and, because the Supreme Court's decisions remain good law, they are binding on us. Lastly, we conclude the issue of whether the court should have stayed Munoz's sentence for the driving without a valid driver's license conviction under Penal Code section 654, subdivision (a), is moot because Munoz has served his sentence for this conviction and he has not identified any disadvantageous collateral consequences sufficiently concrete to avoid the mootness doctrine. We, therefore, affirm the judgment.
In a footnote in the People's brief, the People requested we direct the court to amend the abstract of judgment because it does not include count 2. However, the record only includes the abstract of judgment for the indeterminate portion of Munoz's sentence. It does not include the abstract of judgment for the determinate portion. We are therefore unable to determine if the latter abstract of judgment contains an error requiring correction.
II
BACKGROUND
A
1
One afternoon, a man driving east along a boulevard noticed two vehicles, a Camaro and what appeared to be a Mitsubishi, driving at a high rate of speed from the opposite direction. The two cars appeared to be racing each other: both cars were traveling between 60 to 70 miles per hour (mph), and the Mitsubishi, which was about two cars lengths behind and gaining speed, seemed to be chasing the Camaro. The rear driver's side tire of the Mitsubishi appeared to be going flat and the driver, Munoz, appeared to be about to lose control of the vehicle.
As explained further in part II.D., post, the Mitsubishi was actually a Dodge, but some of its parts had been changed to make it appear to be a Mitsubishi. For purposes of this appeal, we will refer to it as a Mitsubishi.
2
Around the same time, a maintenance mechanic was building a fence along the road. The sound of two vehicles accelerating caught his attention. He looked and saw a Camaro and a Mitsubishi leaving an intersection "full throttle." Based on the speed with which the vehicles left the intersection and the way they were competing against each other, the cars appeared to be racing. The Mitsubishi was in the left lane (lane 1), and the Camaro was in the right lane (lane 2). Both cars were traveling around 60 mph and accelerating. The maintenance mechanic did not see any signs of anything mechanically wrong with the Mitsubishi. He also did not notice anything wrong with the Mitsubishi's tires. As the two vehicles approached traffic, the Camaro slowed down, then changed to lane 1 behind the Mitsubishi. After passing a slower car, the Camaro returned to lane 2. The maintenance mechanic did not see any contact between the two vehicles. At that point, the Mitsubishi, which had continued accelerating, was traveling around 100 mph.
The maintenance mechanic saw the Mitsubishi brake hard, causing its tires to smoke. The Mitsubishi veered into lane 2, then went off the road and struck a tree. The impact caused the vehicle to split in half.
3
A father and son were driving in lane 2 when the Camaro and Mitsubishi, racing side by side, approached fast from behind. The Camaro nearly struck their vehicle when it moved from behind them into lane 1 behind the Mitsubishi to pass them. Both vehicles continued to gain speed after they passed the father's vehicle. After the Camaro switched into lane 1, the son saw the front bumper of the Camaro make slight contact with the passenger side of the Mitsubishi, giving it a "little nudge" and pushing the Mitsubishi. The Mitsubishi tried to switch lanes, but it lost control and hit a tree. The son believed the push from the Camaro caused the Mitsubishi to lose control, but speed caused the collision.
The father thought the Mitsubishi was a Pontiac and he thought the Pontiac, not the Camaro, passed them from behind. --------
4
The passenger in the Mitsubishi, who had been wearing his seatbelt, was ejected from the vehicle. He died from multiple blunt force trauma sustained during the collision.
B
Immediately after the accident, Munoz smelled of alcohol. Munoz said he had consumed one beer. A little over an hour after the collision, Munoz's blood alcohol level was 0.18 percent. He would have needed to consume just over seven 12-ounce beers all at once to reach that level. All persons with a blood alcohol level of 0.08 percent or higher are considered impaired for driving. A person with a blood alcohol level of 0.18 percent would not be able to operate a vehicle safely.
C
1
A deputy sheriff on the traffic and reconstruction team responded to the scene of the collision. He testified the day was clear, warm and dry. There was no wind and it was still light outside. The road on which the collision occurred was constructed of asphalt and concrete with two lanes in each direction. The posted speed limit was 45 mph.
2
A deputy sheriff who is a traffic collision investigator identified three locked wheel skid marks in the roadway associated with the collision. The marks indicated the Mitsubishi skidded 147 feet from lane 1 into lane 2 and then toward a tree. Conservatively estimated, the Mitsubishi decelerated approximately 55 mph while skidding and struck the tree at approximately 25 mph. A vehicle in a locked wheel skid will travel the same distance regardless of whether the brakes are good or bad.
The collision investigator did not know why there was not a fourth skid mark. However, he testified that if the fourth wheel was not on the vehicle at the time of the skid, there would be gouge marks in the roadway from either the tire's rim or from the vehicle's rotor and there were no gouge marks.
The collision investigator did not find any debris in the roadway indicative of bumper-to-bumper contact between the Mitsubishi and the Camaro. Also, there was no hop in the skid marks, which the investigator would have expected to see if there been contact between the vehicles.
D
A deputy sheriff who is also a certified auto mechanic inspected the Mitsubishi to determine whether anything mechanical caused the collision. Although the vehicle was registered as a Dodge, after-market modifications, including a new steering wheel, exhaust pipe, and shock absorbers, made it appear to be a Mitsubishi. The modifications were the type commonly done by racers and were meant to increase the vehicle's performance. Even if Munoz had not made the modifications himself, it was still a race car.
According to the deputy, the force from the impact pushed the seatbelt retractor behind the rear passenger's seat, causing it to break. Under these circumstances, even a new seat belt would have broken.
Although the tread separated from the Mitsubishi's tire on the rear driver's side, the deputy believed the separation occurred during the collision and did not contribute to causing the collision, since there was no wearing on the rim indicating the rim had been dragging on the asphalt before the collision. He further concluded the tire did not separate from the wheel prior to the impact. He based this conclusion on the absence of damage to the rotor and the presence of tree bark embedded in the tire. Although there was a crack in that same wheel, the lack of rust suggested the damage occurred during the collision. One of the tires also showed "a little bit of dry rot."
The deputy could not inspect the rear passenger side brakes because of the amount of damage to the car. He inspected the front driver's side brakes and noted they were worn down, but not to the point they would have failed to stop the car. He inspected the throttle and shock absorbers and did not observe any problems with them. The clutch assembly showed signs of normal wear and there was a gouge in the gearing, but it was in a location that would not have affected shifting.
The deputy searched a national highway transportation database using the Mitsubishi's vehicle identification number and did not find any recalls listed for the vehicle. Based on his inspection, he opined nothing mechanical caused the collision.
E
Munoz did not have a valid California's driver's license at the time of the collision. He had previously been convicted of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). He had also previously completed a four-month, court-mandated, drinking-driver rehabilitation program. Upon entering the program, he signed an advisement warning him (1) driving under the influence of alcohol impairs a person's ability to safely operate a motor vehicle, (2) it is extremely dangerous to human life to drive under the influence of alcohol, and (3) if he continued to drive under the influence of alcohol and killed someone, he could be charged with murder.
F
During a police interview, Munoz stated he was 35 years old, he worked as an auto mechanic, and he never had a driver's license. After his conviction for driving under the influence, he was required to attend classes where he was instructed not to drink and drive. Although he already knew it was wrong to drink and drive without being taught, he nonetheless continued to drink and drive roughly once a week.
Munoz further stated he picked up the victim early in the morning and drove to a ranch, where he drank two large glasses of a beverage made from goat's milk and alcohol. He and the victim returned to Munoz's house around mid-morning, where Munoz had a can of beer and some food and then slept for a few hours. He and the victim then drove to a bar, where they stayed for an hour or two and Munoz drank two bottles of beer.
When he left the bar, Munoz knew it was generally dangerous to drink and drive, but he felt he could drive safely because he had not drunk much and felt fine. He was driving along a road approximately 45 to 60 mph when he noticed the Camaro approaching his vehicle from behind at approximately 60 to 70 mph. The Camaro never hit Munoz's vehicle, but it cut him off, blocked his movement, and ran him off the road. The tires on Munoz's vehicle lost traction, causing him to lose control of the vehicle and collide with a tree. Munoz denied he was racing the Camaro, but he admitted he may have lost control of the Mitsubishi because he was speeding.
Munoz purchased the Mitsubishi two to three months before the collision. The vehicle ran well, but the gears did not work well because the clutch needed to be replaced. The vehicle's engine needed a tune-up and it would overheat a little because the head gaskets needed to be fixed. He subsequently suggested he may have lost control of the vehicle because his shock absorbers were bad and needed to be replaced. He had not replaced the shock absorbers because of the cost. However, as a mechanic, he did not feel the vehicle was unsafe to drive because he would always drive the vehicle safely and he would not drive fast—just the speed limit and "that's it."
III
DISCUSSION
A
The court declined to instruct the jury on any lesser offenses because the court found there was insufficient evidence to support the instructions and, in some instances, statutory and case law prohibited the court from giving the instructions. Munoz contends the court erred by not instructing the jury on gross vehicular manslaughter and gross vehicular manslaughter while intoxicated because they were lesser included offenses of the second degree murder charge under the accusatory pleading test and there was sufficient evidence to support them.
" 'A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. "The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only "[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of" the lesser offense.' " (People v. Landry (2016) 2 Cal.5th 52, 96.) On appeal, we independently review whether the court improperly failed to instruct on a lesser included offense. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Souza (2012) 54 Cal.4th 90, 113; People v. Cady (2016) 7 Cal.App.5th 134, 144.)
"To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' " (People v. Shockley (2013) 58 Cal.4th 400, 404, quoting People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
In this case, the amended information tracked the language of Penal Code section 187, subdivision (a), and alleged, on a particular date in a particular county, Munoz "did willfully, unlawfully and with ... malice aforethought murder [the victim], a human being." When an accusatory pleading simply tracks statutory language without providing additional factual allegations, we must rely solely on the elements test. (People v. Robinson (2016) 63 Cal.4th 200, 207; People v. Shockley, supra, 58 Cal.4th at p. 404; People v. Anderson (1975) 15 Cal.3d 806, 809.) Munoz acknowledges neither gross vehicle manslaughter nor gross vehicular manslaughter while intoxicated is a lesser included offense of second degree murder under the elements test because second degree murder does not require the use of a vehicle or intoxication. (See People v. Sanchez (2001) 24 Cal.4th 983, 989, overruled on another point in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229; People v. Johnson (2016) 6 Cal.App.5th 505, 513.)
Without discussing the above authorities limiting our analysis to the elements test, Munoz asserts we must apply the accusatory pleading test and we should expand the test to include consideration of the facts alleged in the count 2 driving without a valid driver's license charge. As support for this assertion, Munoz notes count 2 states it is "connected in its commission to the charge set forth in count 1." However, the "connected in its commission" language is taken nearly verbatim from Penal Code section 954, which governs when different charges may be joined in a single accusatory pleading. The language does not necessarily mean the two charges are related to the same transaction or event. Rather, the language may mean only that " ' "there is a common element of substantial importance in their commission." ' " (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218, italics omitted.) Consequently, by itself, the language provides no justification for utilizing the factual allegations in count 2 to determine the lesser included offenses for count 1.
As further support for this assertion, Munoz relies on People v. Cook (2001) 91 Cal.App.4th 910 (Cook). In Cook, the appellate court concluded, when applying the accusatory pleading test, a court may rely on the overt act allegations in a conspiracy count to determine the lesser included offenses for the same conspiracy count. (Id. at pp. 914, 919.) Cook did not involve, discuss, or endorse the use of factual allegations in one count to determine the lesser included offenses for another count. Thus, Cook also provides no justification for utilizing the factual allegations in count 2 to determine the lesser included offenses for count 1.
Alternatively, Munoz asserts we should expand the accusatory pleading test to include consideration of the facts adduced at the preliminary hearing. As support for this assertion, he relies on People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega), which did exactly that to conclude the trial court should have instructed the jury on a particular uncharged lesser offense. (Id. at pp. 967-968.) We decline to follow Ortega because Ortega conflicts with the California Supreme Court's guidance in People v. Montoya (2004) 33 Cal.4th 1031 (Montoya), which Ortega neither cites nor discusses.
In Montoya, the California Supreme Court instructed, "Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense." (Montoya, supra, 33 Cal.4th at p. 1036.) On this point, the Supreme Court expressly disapproved People v. Rush (1993) 16 Cal.App.4th 20, which, like Ortega, relied on preliminary hearing evidence to apply the accusatory pleading test. (Montoya, at p. 1036, fn. 4; People v. Rush, supra, at p. 27.)
Absent further guidance from the California Supreme Court expanding the accusatory pleading test beyond the language of "the pleading for the greater offense," we conclude Munoz has not demonstrated the trial court had a sua sponte duty to instruct the jury on either gross vehicular manslaughter or gross vehicular manslaughter while intoxicated. Consequently, we need not decide whether the court's failure to do so prejudiced Munoz.
B
The court instructed the jury on second degree murder using CALCRIM 520. Munoz contends we must reverse his second degree murder conviction because the language used in this instruction does not adequately inform the jury of the requirements for the implied malice element. More particularly, he contends the instruction did not inform the jurors they could only find him guilty of second degree murder if there was proof beyond a reasonable doubt he committed an act involving a high degree of probability death would result.
We previously rejected this same argument in People v. Curtis (1994) 30 Cal.App.4th 1337, because the California Supreme Court has repeatedly stated the language used in CALCRIM 520 and the language for which Munoz advocates are equivalent to one another. (People v. Curtis, supra, at pp. 1353-1354, citing People v. Nieto Benitez (1992) 4 Cal.4th 91, 104; People v. Dellinger (1989) 49 Cal.3d 1212, 1219; People v. Watson (1981) 30 Cal.3d 290, 300.) The Supreme Court has also expressed its approval of and preference for the language used in CALCRIM 520. (People v. Nieto Benitez, supra, at p. 104; People v. Dellinger, supra, at p. 1222.) These Supreme Court authorities remain good law. (People v. Knoller (2007) 41 Cal.4th 139, 151-152.) Consequently, they are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Given this conclusion, we need not decide whether Munoz forfeited his challenge to the instruction by failing to object to it below. We also need not decide whether Munoz's trial counsel provided ineffective assistance by failing to object to the instruction below.
C
Finally, Munoz contends the court erred by failing to stay his sentence for count 2 under Penal Code section 654, subdivision (a), because his conviction in count 2 arose out of the same act as his conviction in count 1. We conclude this contention is moot because Munoz long ago completed his sentence for count 2 and there is no effective relief we can grant him if he were to prevail. (People v. DeLeon (2017) 3 Cal.5th 640, 645 (DeLeon).)
Munoz contends this contention is not moot because the failure to stay his sentence for count 2 may cause disadvantageous collateral consequences in the future. As examples of these consequences, he points to the application of recidivism statutes, such as the Three Strikes law, and the criteria for mandatory exclusion from participation in programs offered by the California Department of Corrections and Rehabilitation, such as the Alternative Custody Program. Both examples involve collateral consequences for felony conduct, not misdemeanor conduct. Munoz has not identified any comparable collateral consequences for misdemeanor conduct. Both examples also assume the occurrence of other circumstances, such as Munoz committing additional crimes or Munoz otherwise satisfying program eligibility requirements. Accordingly, these consequences are too speculative to avoid the mootness doctrine. (DeLeon, supra, 3 Cal.5th at p. 646 & fn. 2.)
IV
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: HALLER, J. O'ROURKE, J.