Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC891595
Mihara, J.
Defendant Johnny Frank Reza appeals from a judgment of conviction entered after a jury found him guilty of second degree murder (Pen. Code, § 187 - count 1), felony driving under the influence causing injury (Veh. Code, § 23153, subd. (a) - count 2), misdemeanor hit and run driving causing property damage (Veh. Code, § 20002, subd. (a) - count 3), misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a) - count 4), and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) - count 5). In connection with count 2, the jury also found true the allegation that defendant personally inflicted great bodily injury within the meaning of Penal Code sections 12022.7, subdivision (a) and 1203, subdivision (e)(3). The trial court sentenced defendant to state prison for 15 years to life. On appeal, defendant’s contentions include issues regarding jury instructions and the effectiveness of counsel. We find no error and affirm.
I. Statement of Facts
At about 6 p.m. on January 8, 2008, Colin Buckner was standing on North Third Street where it intersects with Julian Street. It had rained recently and the roads were still wet. While Buckner was talking to his neighbors, he heard a truck “peel out, accelerate a little bit too hard.” He then saw the truck travel east on Julian Street towards Fifth Street. The light on Fourth Street had just turned yellow, and it appeared to Buckner that the truck was trying to make it through the intersection before the light turned red. The truck “fish tail[ed]” through the intersection, hit two cars that had been stopped at the light, and accelerated “even more.” The truck also went through the red light at Julian and Fifth Streets. Buckner ran across the street to assist the drivers in the cars that had been hit. As they were talking, Buckner saw flashing lights further down on Julian Street. He then walked to 15th Street where he saw that the same truck had been involved in another collision.
Officer Mike Lutticken was dispatched to the intersection of North 15th and Julian Streets. When he arrived at the scene, there were several police cars and fire trucks, and firefighters were using the jaws-of-life on a black pickup truck. As they attempted to remove defendant from this truck, he was yelling obscenities and spitting at them. A Ford Taurus and a Chrysler Sebring convertible were also involved in the collision. The roof of the Taurus had been removed and the convertible had sustained damage to its front end. Jean Lagunas was the driver of the Taurus and Diane Salinas was the driver of the Chrysler.
Officer Lutticken also testified as an expert in use of methamphetamine and PCP. He testified that the use of methamphetamine will dilate an individual’s pupils and accelerate one’s heart rate as well as cause sweating, dehydration, and hallucinations. The effects of methamphetamine can last eight to twelve hours. Regarding PCP, the officer testified that it will cause constriction of the pupils, horizontal and vertical nystagmus, and increased respiration and heart rate. PCP use may also include mood swings, “super human strength, ” aggression, and exaggerated gait.
Officer Francisco Ordaz was also dispatched to the scene. He described defendant as sweaty, using “very slurred” speech, and with bloodshot, glassy eyes and a strong odor of alcohol on his breath. Defendant’s truck had suffered “major front end damage.” According to Officer Ordaz, emergency personnel used a spit sock to prevent defendant from spitting on them. When defendant was removed from his truck, he tried to flee. Officer Ordaz estimated that defendant was five feet six inches and weighed 180 pounds.
Josiah Staley, a paramedic, attempted to assist defendant. Defendant pushed him away, yelled obscenities, and spit at him. Defendant told Staley that he had consumed 10 beers prior to the collision.
Darryn Kitzmiller, another paramedic, found Lagunas pinned in her car. Kitzmiller suspected that Lagunas had bilateral femur fractures, partial amputation of her right ankle, and wrist and arm fractures. Lagunas also complained of abdominal, back, and chest pain.
Officer Raymond Vaughn spoke with Lagunas’ seven-year-old daughter Lillian, who was standing near her mother’s car. As the paramedics assisted Lillian, Officer Vaughn observed emergency personnel trying to render first aid to defendant as well as extract him from his truck. Defendant tried to strike one of the firefighters with a closed fist and was yelling: “ ‘Fuck you, motherfuckers. I’ll kill you. Fuck you.’ ” Officer Vaughn believed that defendant was under the influence of alcohol because his speech was slurred, he had bloodshot, watery eyes, he was uncooperative and aggressive, and he had a very strong odor of alcohol about his person and his breath. In Officer Vaughn’s opinion, defendant was also under the influence of methamphetamine or PCP or both. He was grinding his teeth, clenching his jaws, and sweating excessively. He also had dilated pupils that did not constrict when they should have, and rapid speech.
Officer Gustavo Vega was dispatched to the collision on North Fourth and Julian Streets and contacted the two drivers. Heidi Shigematsu’s Cadillac had scrape marks on the driver’s side from the front to the rear. Yen Li’s Volkswagen had “moderate damage” to the driver’s side. Officer Vega concluded that the cause of the collision was “speed unsafe for conditions.” Shigematsu showed the officer a piece of the bumper from the truck that had hit them. Officer Vega later went to the scene of the collision on North 15th and Julian Streets. In his opinion, the bumper from the collision matched defendant’s truck.
Christine Tsou, an internist at Santa Teresa Kaiser Hospital, testified as an expert in the area of internal medicine. Dr. Tsou treated Lagunas from January 24, 2008 until April 19, 2008. Lagunas suffered multiple pelvic fractures, including a left pubic ramus fracture with symphyseal disruption. She also suffered a wrist fracture, dislocation of the right ankle, a rupture to the left diaphragm, tears of the sigmoid colon and the sigmoid mesentery, a dissection of the left renal artery and left pelvic vessels, and bilateral foot drop. Lagunas underwent multiple surgeries for these injuries. In addition, she suffered multiple infections and acute renal failure, which required dialysis.
According to Dr. Tsou, Lagunas was at high risk for developing blood clots because she had had hip surgery, multiple fractures, damage to organs, and multiple surgeries. Her age and lack of movement during her hospitalization also increased her risk. When Lagunas arrived at Kaiser Hospital, there were two blood clots in the lower part of her leg. Lagunas died of a pulmonary embolism when the blood clots traveled to her lungs in May 2008. Though Dr. Tsou did not know exactly the role each risk factor played in the development of the blood clots, she opined that Lagunas died as a result of the collision.
On cross-examination, Dr. Tsou conceded that Lagunas had risk factors for developing blood clots prior to the accident. She was obese and suffered from minimal change disease. She also noted that blood clots can be formed by defects in the lining of a vein or artery.
Dr. Zineb Benmayouf, a nephrologist, was Lagunas’ treating physician for minimal change disease. Between January 24 and April 19, 2008, her minimal change disease was in remission because she was receiving treatment for it. In his opinion, Lagunas developed blood clots as a result of the collision.
Glenn Nazareno, a forensic pathologist, testified that the cause of Lagunas’ death was pulmonary thromboembolism due to blood clots forming in her lungs. In his opinion, the injuries that Lagunas sustained from the collision created a number of high risk factors for the development of blood clots.
Trevor Gillis, a criminalist, testified as an expert in the areas of testing blood for the presence of PCP, methamphetamine, and alcohol, and the effects of these drugs on the human body. He testified that defendant’s blood was taken at 7:30 p.m. and his samples showed alcohol present at 0.07 percent. In his opinion, defendant’s blood-alcohol level 90 minutes earlier would have been between 0.08 to 0.10 percent. According to Gillis, everyone is impaired at 0.08 percent. Defendant’s blood sample was also positive for PCP and methamphetamine.
On cross-examination, Gillis testified that there is not a correlation between the detection of methamphetamine in someone’s blood and his behavior. He also noted that PCP can be detected in an individual’s blood up to five days after it has been ingested.
Officer Sarah Stephens testified as an expert in accident reconstruction. She noted that the speed limit on Julian Street is 25 miles per hour. Based on her investigation, Officer Stephens concluded that defendant was involved in the collision on Fourth and Julian Streets, and he traveled against one-way traffic on Julian Street until 15th Street where his truck hit Lagunas’ car head-on and then struck Salinas’ car. Based on the crash data retrieval system of defendant’s truck, it was determined that the truck was traveling approximately 65 miles per hour one second prior to the collision with Lagunas’ car.
Mary Mitchell, a supervisor for the traffic division of the Santa Clara County Superior Court, testified regarding defendant’s driving and criminal history as reflected in Department of Motor Vehicle records. Defendant had speeding violations in July 2007 and November 2007, which resulted in the suspension of his driver’s license in December 2007. Defendant’s driver’s license had previously been suspended in 1992. In November 1994, defendant was arrested for being under the influence and using a controlled substance. In April 1994, defendant was arrested for driving under the influence of alcohol. In September 1992, he was arrested for driving under the influence, which resulted in a conviction. In May 1992, defendant was convicted of hit and run in violation of Vehicle Code section 20002, subdivision (a). Defendant was also convicted of driving under the influence of alcohol on September 22, 1988, May 21, 1985, March 14, 1984, January 4 and 31, 1983, and April 15, 1982.
Nydia Smith, a probation officer, testified that she supervised defendant from 2002 through 2003. Defendant was at a residential drug and alcohol treatment center in 1996. At Smith’s first meeting with defendant on July 1, 2002, he admitted ingesting methamphetamine two weeks earlier and then driving to see a potential employer. On July 30, 2002, defendant was involved in an auto collision. Smith later discussed with defendant that his driving privileges were suspended and thus he should not have been driving at the time of the collision. When Smith met with defendant in September 2002, he smelled of alcohol. He denied that he had been drinking alcohol, but admitted that he had recently used PCP twice.
Officer Christopher Jolliff testified that he had investigated a domestic disturbance at 10:20 p.m. on November 13, 2004. The reporting party stated that a male was acting erratically, breaking items, and yelling. When Officer Jolliff contacted defendant, defendant was “verbally combative.” The officer noted that defendant was very rigid and sweating profusely. His hands were balled up, and his eyes were bugging out, very bloodshot, and glassy. He was also walking very slowly and methodically. In Officer Jolliff’s opinion, defendant was under the influence of PCP. When Officer Jolliff arrested him, defendant was uncooperative and had to be pepper sprayed and tased.
Nazareno was recalled to testify for the defense. He testified that Lagunas had a history of diabetes, hypertension, lupus, and obesity. He explained that diabetes is a contributing factor in macrovascular arthrosclerosis, which leads to blood flow problems, hypertension can lead to stroke, kidney failure, and heart failure, and lupus causes the body’s defense system to attack the microcirculation in the blood vessels.
II. Discussion
Defendant contends the trial court erred when it denied his motion for a new trial. He argues that the trial court erred in its instructions to the jury and he was deprived of the effective assistance of counsel.
A. Standard of Review
Relying on People v. Staten (2000) 24 Cal.4th 434, 466, the People argue that the appropriate standard of review from the denial of a motion for new trial is abuse of discretion. Defendant, however, relies on People v. Ault (2004) 33 Cal.4th 1250 (Ault). In Ault, our Supreme Court recognized that some courts have distinguished orders granting a new trial from those denying one in determining the appropriate standard of review. (Ault, at p. 1260.) In dicta, Ault stated that when a defendant “reasserts, on appeal, the claims previously raised in an unsuccessful new trial motion” (Ault, at p. 1261), “article VI, section 13 of the California Constitution obliges the appellate court to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing court must determine for itself whether errors denied a fair trial to the party against whom the judgment was entered.” (Ault, at pp. 1261-1262, fn. omitted.) Applying either standard of review, we conclude that the trial court did not err in denying the motion for a new trial.
B. CALJIC Nos. 4.20 and 4.21
Defendant argues that the trial court erred in instructing the jury with CALJIC No. 4.20 because it gave the jury the impression that murder was a general intent crime. He also argues that CALJIC No. 4.21 should have been given.
The trial court instructed the jury that “[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. In the crimes charged in counts 1, 2, 3, 4, and 5, the fact that the defendant was voluntarily intoxicated is not a defense and does not [relieve] him of responsibility for any of those crimes.” The trial court also instructed the jury with CALCRIM No. 251: “The crime charged in count 1, namely murder, requires proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of murder, the defendant must not only intentionally commit the prohibited act, but must do so with the specific mental state. [¶] The act and specific mental state required are explained in the instruction for that crime.” The trial court subsequently defined murder with CALJIC No. 8.10, malice aforethought with CALJIC No. 8.11, and second degree murder with CALJIC No. 8.31.
The title to CALJIC No 4.20 states: “VOLUNTARY INTOXICATION - NOT A DEFENSE TO GENERAL INTENT CRIMES.” Though the trial court did not read the title to the jury, a copy of the instructions was given to the jury to use during their deliberations.
The trial court instructed the jury pursuant to CALJIC No. 8.10: “Defendant is accused in count 1 with having committed the crime of murder, a violation of section 187 of the Penal Code. Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of Penal Code section 187. A killing is unlawful if it is neither justifiable nor excusable. In order to prove this crime, each of the following elements must be proved. [¶] One, a human being was killed. [¶] Two, the killing was unlawful. [¶] And, three, the killing was done with malice aforethought.”
The trial court instructed the jury pursuant to CALJIC No. 8.11: “Malice may be either express[ ] or implied. Malice is express[ ] when there is manifested an intention unlawfully to kill a human being. Malice is implied when, one, the killing resulted from an intentional act. Two, the natural consequences of the act are dangerous to human life and, three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When it is shown that a killing resulted from an intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word aforethought does not imply deliberation or an elapse of considerable time. It only means that the required mental state must precede rather than follow the act.”
The trial court instructed the jury pursuant to CALJIC No. 8.31: “Murder in the second degree is the unlawful killing of a human being, when 1, the killing resulted from an intentional act, 2 the natural consequences of the act are dangerous to human life, and three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.”
In denying defendant’s motion for a new trial, the trial court concluded it was not error to give CALJIC No. 4.20 and that other instructions correctly defined the requisite mental state for murder. We agree.
People v. Martin (2000) 78 Cal.App.4th 1107 (Martin) is instructive. In Martin, the defendant’s blood alcohol level was.27 percent when she was involved in three vehicular collisions within an hour. (Martin, at p. 1110.) In the first two collisions the occupants were injured while a child was killed in the third collision. (Ibid.) The defendant was convicted of second degree murder, gross vehicular manslaughter while intoxicated, and other charges. (Ibid.) On appeal, the defendant argued that the trial court erred in instructing the jury pursuant to CALJIC No. 4.20 rather than CALJIC No. 4.21. (Martin, at p. 1111.) Martin first noted that these instructions were based on Penal Code section 22, which states “the basic principle of law recognized in California that a criminal act is not rendered less criminal because it is committed by a person in a state of voluntary intoxication. Evidence of voluntary intoxication is not admissible to negate the capacity to form any mental states for the crimes charged. However, evidence of voluntary intoxication is admissible with respect to the actual formation of a required specific intent. (§ 22.)” (Martin, at p. 1113.) After examining the history of the amendments to Penal Code section 22, Martin concluded that “[i]t is clear that the effect of the 1995 amendment to section 22 was to preclude evidence of voluntary intoxication to negate implied malice aforethought.” (Martin, at p. 1114.) Thus, Martin held that no error occurred.
Similarly, People v. Timms (2007) 151 Cal.App.4th 1292 reasoned that “[t]the absence of implied malice from the exceptions listed in subdivision (b) is itself a policy statement that murder under an implied malice theory comes within the general rule of subdivision (a) such that voluntary intoxication can serve no defensive purpose. In other words, [Penal Code] section 22, subdivision (b) is not ‘merely an evidentiary prescription’; rather, it ‘embodies 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 (conc. opn. of Ginsburg, J.).) In short, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard.” (Id. at p. 1300.)
Here, the prosecution theory was that defendant had acted with implied malice. Since voluntary intoxication does not negate implied malice, CALJIC No. 4.20, as given in this case, was a correct statement of law.
We are also not persuaded that this instruction misled the jury regarding the intent necessary for a finding of second degree murder. We “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given” (People v. Mills (1991) 1 Cal.App.4th 898, 918), and on review we consider the instructions as a whole rather than in isolation. (People v. Cain (1995) 10 Cal.4th 1, 36, disapproved on another ground in People v. Moon (2005) 37 Cal.4th 1, 17.) Here, the trial court gave CALCRIM No. 251, CALJIC Nos. 8.10, 8.11, and 8.31, which correctly instructed the jury on the mental state required for murder. Thus, in considering the instructions as a whole, the jury was informed that voluntary intoxication was not a defense and that it was required to find malice aforethought before rendering a guilty verdict.
Defendant’s position that the trial court erred by failing to give CALJIC No. 4.21 is also unavailing.
CALJIC No. 4.21 instructs the jury, in relevant part, that “if the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent] [mental state]. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]].”
A trial court has a sua sponte duty to instruct on all defenses that are consistent with the defendant’s theory of the case and that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 157.) However, a voluntary intoxication instruction, such as CALJIC No. 4.21, is a pinpoint instruction to which a defendant may be entitled only upon request. (People v. San Nicolas (2004) 34 Cal.4th 614, 670.) Since defendant did not request CALJIC No. 4.21, the trial court did not err in failing to give this instruction.
C. Duty to Instruct on Lesser Offenses
Defendant next contends that the trial court erred in failing to instruct on the lesser included offense of vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1) & (2).)
Vehicular manslaughter is a lesser related, not a lesser included, offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 988, 992.) “[A] defendant has no right to instructions on lesser related offenses even if he requests the instruction and it would have been supported by substantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1064.) California law does not permit a court to instruct on an uncharged lesser related crime unless agreed to by the prosecution. (People v. Birks (1998) 19 Cal.4th 108, 136-137.)” (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.) Here, defendant did not request this instruction, and thus there is no indication that the prosecution would have agreed to such an instruction.
Relying on People v. Ochoa (1998) 19 Cal.4th 353, defendant asserts that involuntary manslaughter is a lesser included offense of murder. Ochoa did not involve a vehicular death. (Id. at pp. 380-381.) Penal Code section 192, subdivision (b) states that involuntary manslaughter does not apply to vehicular deaths.
Penal Code section 192 defines involuntary manslaughter as “the unlawful killing of a human being without malice.... [¶]... [¶]... [i]n the commission of an unlawful act, not amounting to felony or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.” (Italics added.)
Defendant is also incorrect that the jury was faced with the choice of “ ‘murder or not.’ ” As the trial court noted, if the jury had not been persuaded that defendant was guilty of second degree murder, it could have found him guilty of only driving while under the influence of alcohol with the great bodily injury allegation.
D. Ineffective Assistance of Counsel
Defendant next contends that his counsel rendered ineffective assistance because he failed to request instructions on lesser offenses, failed to object when the trial court instructed the jury pursuant to CALJIC No. 4.20, and failed to request that the jury be instructed pursuant to CALJIC No. 4.21.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
Trial counsel’s declaration stated, in relevant part: “In retrospect, and as I reflect upon the way the trial was conducted in this case, I wish that I had made a record regarding the following issues: [¶] a. The jury should have been instructed on the lesser related offenses of Gross Vehicular Manslaughter, per Penal Code 191.5; [¶] b. The jury should have been instructed on the lesser included offenses of Misdemeanor Manslaughter, per Penal Code 192(c); and, [¶] c. The jury should not have been given the impression, via CALJIC 4.20, that Count One (Watson Murder) was a general intent crime.”
Even assuming that trial counsel’s performance was deficient, defendant has failed to establish prejudice. First, a jury instruction on lesser related offenses, such as vehicular manslaughter, was subject to stipulation by the prosecution (People v. Valentine, supra, 143 Cal.App.4th at p. 1387), and the record does not establish that the prosecutor would have agreed to this instruction. Second, CALJIC No. 4.20 was a correct statement of the law. (People v. Timms, supra, 151 Cal.App.4th at p. 1300; Martin, supra, 78 Cal.App.4th at p. 1114.) Moreover, CALCRIM No. 251, and CALJIC Nos. 8.10, 8.11, and 8.31 correctly informed the jury regarding the mental state required for murder. Accordingly, there is not a reasonable probability that the result would have been different if trial counsel had acted differently.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.