Opinion
G043619 Super. Ct. No. 09ZF0055
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. BRITTANY DEANNE SCHUETZ, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Brittany Deanne Schuetz of second degree murder (Pen. Code, § 187, subd. (a); all statutory references are to the Penal Code unless otherwise noted) on an implied malice theory. The charge arose from a fatal automobile collision occurring when an intoxicated Schuetz ran a red light while traveling over 80 miles per hour and rammed into a vehicle driven by April Wang, killing her instantly. Schuetz contends the trial court violated section 22, subdivision (b) (section 22(b)), and her constitutional rights to due process and equal protection by allowing the prosecution to use evidence of her voluntary intoxication to establish implied malice. She also argues the trial court failed to instruct the jury on lesser offenses to provide the jury with an alternative to a murder conviction other than an outright acquittal, and complains the trial court erroneously excluded expert testimony offered to show she was legally unconscious when she drove her car and therefore could not have formed the required mental state for implied malice murder. Finding no merit to Schuetz's challenges, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2009, 20-year-old Schuetz planned to go out with her friend Katie Topete and then spend the night at Topete's Whittier residence. After arriving at Topete's house, Schuetz and Topete spent about 45 to 60 minutes drinking vodka mixed with soft drinks. Topete's friends Nina Arutyunan and Christina Lares joined them and the group left for a party in Sherman Oaks.
Arutyunan agreed to serve as the designated driver because she did not drink. At the party, Schuetz and Topete found a place on the sofa and resumed drinking vodka. Eventually the group was asked to leave after Schuetz stumbled and fell as she tried to get up from the sofa and then argued with another guest.
On the way back to Topete's house, Schuetz called her boyfriend and asked him to pick her up because she no longer wanted to "hang out" with Topete, Arutyunan, and Lares. She got into a heated argument with him when he told her he could not pick her up because he was out drinking with friends and did not have his car.
When the group arrived at Topete's house, they began discussing Schuetz's options because she made it clear she did not want to stay with Topete, Arutyunan, and Lares any longer. The women all agreed Schuetz had consumed too much alcohol to drive safely. Arutyunan and Lares offered to drive Schuetz and her car to Schuetz's house or her boyfriend's house, and Topete told Schuetz she could spend the night at her house as they originally planned. Topete and Arutyunan also offered to call Schuetz's mother or boyfriend to ask them to pick her up. The group pleaded with Schuetz not to drive. Topete reminded Schuetz of her prior drunk driving conviction and stood behind Schuetz's car to prevent her from backing out of the driveway.
Ultimately, Schuetz rejected all efforts to dissuade her from driving, started her car, and backed out of Topete's driveway. As Schuetz began driving down the street, Topete yelled at Schuetz to turn her headlights on. The group watched as Schuetz stopped at a stop sign and turned on her headlights. Schuetz then stopped at a red light at the end of Topete's street before turning onto a major thoroughfare.
Schuetz drove east on Imperial Highway at approximately 93 to 98 miles per hour, more than double the posted speed limit of 40 miles per hour. Schuetz approached a red light at the intersection of Imperial Highway and Beach Boulevard as April Whang made a left turn from Beach Boulevard onto Imperial Highway. Schuetz ran the red light and collided with Whang's Acura sedan. The force of the collision killed Whang instantly. Skid marks revealed Schuetz tried to stop before the collision, but an accident reconstructionist estimated she still was travelling between 86 and 92 miles per hour at impact.
A blood sample taken approximately two hours after the collision registered Schuetz's blood alcohol level at 0.24 percent. A criminalist with the Orange County Crime Lab estimated Schuetz had a blood alcohol level of approximately 0.27 percent at the time of the collision. Schuetz testified she could not recall clearly any events after the group left the party in Sherman Oaks.
Schuetz brought a pretrial motion asking the court to allow her to present expert testimony on unconsciousness. She proposed to call Dr. Richard Rappaport, who, according to his report, would testify that when Schuetz left Topete's residence her intoxication level reached a state of "automatism," which meant she could perform the physical acts required to drive a car, but could not "think protectively" or recognize the danger her condition presented. The trial court denied Schuetz's request and excluded the evidence, finding voluntary intoxication, even to the point of unconsciousness, did not provide a defense to implied malice murder.
At trial, the evidence showed Schuetz pleaded guilty to a separate drunk driving charge approximately two years earlier. As part of her sentence, Schuetz attended a three-month alcohol education program. Schuetz learned when she entered her guilty plea in the prior case and when she attended the educational program that she could be charged with manslaughter and possibly murder if she drove under the influence and killed someone.
A jury convicted Schuetz of second degree murder on an implied malice theory. The trial court sentenced Schuetz to 15 years to life in state prison. She timely appealed.
ii
DISCUSSION
A. The Prosecution Did Not Improperly Use Evidence of Schuetz's Voluntary Intoxication to Establish Implied Malice
Schuetz contends the prosecution violated section 22(b) and her constitutional rights to due process and equal protection by using evidence of her voluntary intoxication to establish Schuetz acted with implied malice.
1. Legal Framework for Implied Malice Murder and Voluntary Intoxication Evidence
Section 187, subdivision (a), defines murder as "the unlawful killing of a human being, or fetus, with malice aforethought." Malice may be either express or implied. (§ 188.) Malice is implied "when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (People v. Cook (2006) 39 Cal.4th 566, 596.)
"It is well established that driving while intoxicated is an act which may support a conviction for second degree murder under an implied malice theory." (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1080 (Ferguson); People v. Watson (1981) 30 Cal.3d 290, 300-301 (Watson).)"'One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (Watson, supra, at pp. 300-301.)
Before 1995, voluntary intoxication evidence could be introduced to negate implied malice. (§ 22, former subd. (b).) Former section 22(b) stated: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." In People v. Whitfield (1994) 7 Cal.4th 437, 446, 459, the Supreme Court interpreted "'malice aforethought, when a specific intent crime is charged'" to include implied malice. As a result, the Whitfield court held the prosecution could use voluntary intoxication evidence to prove implied malice and the defense could use the same evidence to negate implied malice. (Id. at p. 451.) In 1995, the Legislature reacted to Whitfield by amending section 22(b) to limit a defendant's permissible use of voluntary intoxication evidence to negating express malice only. (People v. Mendoza (1998) 18 Cal.4th 1114, 1125-1126.) "With the 1995 amendment, voluntary intoxication is no longer admissible to negate implied malice." (People v. Timms (2007) 151 Cal.App.4th 1292, 1298 (Timms); see also People v. Martin (2000) 78 Cal.App.4th 1107, 1114 (Martin).)
In pertinent part, section 22 now provides: "(a) 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. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought."
2. Section 22(b) Did Not Prohibit the Prosecution from Presenting Voluntary Intoxication Evidence to Prove Implied Malice
Because section 22(b) allows voluntary intoxication evidence solely to show whether a defendant actually harbored express malice, Schuetz contends it necessarily prohibits the use of voluntary intoxication evidence to either establish or negate implied malice. Schuetz argues the prosecution violated section 22(b) by using voluntary intoxication evidence to show she acted with implied malice.
Schuetz, however, failed to preserve the issue for review by failing to object to the introduction of evidence regarding her voluntary intoxication. (Evid. Code, § 353, subd. (a); Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13 [failure to object to evidence in the trial court bars appellate challenge to that evidence].) On appeal, Schuetz generally challenges the evidence of her voluntary intoxication, but fails to point to any specific voluntary intoxication evidence the trial court improperly admitted or the prosecution improperly used.
Schuetz also waived any objection to the jury relying on voluntary intoxication evidence to establish implied malice because she failed to request an instruction limiting the jury's use of that evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 1020 [appellant's failure to request jury instruction clarifying legal principle waived any claim trial court erred by not giving the instruction].) "An instruction on the significance of voluntary intoxication is a 'pinpoint' instruction that the trial court is not required to give unless requested by the defendant." (People v. Rundle (2008) 43 Cal.4th 76, 145, overruled on different ground in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Saille (1991) 54 Cal.3d 1103, 1120.) Here, neither Schuetz nor the prosecution requested an instruction regarding the proper use of voluntary intoxication evidence and the trial court did not give one sua sponte.
Schuetz's challenge also fails on its merits. Section 22, subdivision (a) (section 22(a)), creates a wholesale prohibition against a defendant using voluntary intoxication evidence to "negate the capacity to form any mental states for the crimes charged, including, but not limited to, . . . malice aforethought . . . ." (Italics added.) Nothing in section 22(a) prohibits the prosecution from using voluntary intoxication evidence to establish an element of any offense.
Section 22(b) creates a limited exception to section 22(a). It allows defendants to use voluntary intoxication evidence to show they did not "actually form[]a required specific intent, or, when charged with murder, . . . [actually] harbored express malice aforethought.'" (Italics added.) Section 22(b) does not include implied malice within the limited exception it creates. Consequently, section 22(a)'s prohibition against using voluntary intoxication evidence to negate the capacity to form any mental state governs murder prosecutions based on implied malice. Section 22(b)'s limited exception allowing defendants to use voluntary intoxication evidence to show they did not actually harbor express malice aforethought does not apply to implied malice murder. (Timms, supra, 151 Cal.App.4th at p. 1300 ["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" (italics added)].)
Schuetz completely ignores section 22(a). Because section 22(b) does not expressly permit a defendant to offer voluntary intoxication evidence on implied malice, Schuetz assumes section 22(b) prohibits both the defense and prosecution from using voluntary intoxication evidence to show whether a defendant actually harbored implied malice. Following the Legislature's 1995 amendment, however, section 22(b) no longer addresses whether voluntary intoxication evidence is admissible to either prove or disprove implied malice. The prohibition against a defendant using voluntary intoxication evidence to negate implied malice arises from section 22(a), not section 22(b). Section 22(a), however, erects no barrier to the prosecution using voluntary intoxication evidence to establish implied malice.
Schuetz's construction of section 22(b) would abrogate the well-settled rule allowing the prosecution to base an implied malice murder conviction on drunk driving. (See, e.g., Watson, supra, 30 Cal.3d at pp. 300-301; Ferguson, supra, 194 Cal.App.4th at 1080.) Indeed, Schuetz's construction would completely do away with drunk driving as a possible basis for second degree murder based on implied malice because it would preclude the prosecution from offering any evidence of voluntary intoxication.
The legislative history for the 1995 amendment to section 22(b) does not support Schuetz's claim. Indeed, that history demonstrates the Legislature intended to preserve drunk driving as a basis for second degree murder based on implied malice. A legislative analysis of the 1995 amendment explained the reason for altering section 22(b): "The decisive problem with Whitfield is that it contradicts the specific intent doctrine it purports to serve. California law provides that aggravated drunk driving can increase a defendant's liability for a vehicular homicide to a second-degree murder. Post Whitfield, however, intoxication, if sufficiently severe, can simultaneously mitigate liability to involuntary or vehicular manslaughter by negating implied malice. Allowing the same fact to both aggravate and mitigate liability is contradictory and confusing to juries. . . . In effect, Whitfield created a strained interpretation of California homicide law and created a needless loophole that is suspiciously close to the legislatively discredited diminished capacity defense." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 121 (1995-1996 Reg. Sess.) July 11, 1995, p. 5.)
Thus, when properly read in its entirety, section 22 prohibits a defendant from offering voluntary intoxication evidence to negate implied malice, but erects no barrier to the prosecution using voluntary intoxication evidence.
3. Section 22 Does Not Violate Schuetz's Due Process or Equal Protection Rights
California appellate courts have held section 22(b)'s prohibition against using voluntary intoxication evidence to negate implied malice does not violate a defendant's due process or equal protection rights. (Timms, supra, 151 Cal.App.4th at pp. 1300, 1302 ["we nonetheless conclude that the application of section 22 does not violate appellant's due process rights. [¶] . . . [¶] Section 22 Does Not Violate Equal Protection Principles" (italics omitted)]; Martin, supra, 78 Cal.App.4th at p. 1117 ["The 1995 amendment to section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited. We find nothing in the enactment that 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 . . . . [¶] Accordingly, we find no due process violation"].)
Schuetz nonetheless argues section 22 violates her due process and equal protection rights because it acts as a two-edged sword by prohibiting her from using voluntary intoxication evidence to negate implied malice, but allowing the prosecution to use that same evidence to prove implied malice. (See In re Winship (1970) 397 U.S. 358, 364 (Winship) [due process places on the government the burden of proving each element of the charged offense beyond a reasonable doubt]; Patterson v. New York (1977) 432 U.S. 197, 210 (Patterson) [due process requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the charged offense].)
Schuetz bases her argument on the United States Supreme Court's decision in Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), which rejected a due process challenge to a Montana statute stating, in pertinent part, "voluntary intoxication 'may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense.'" (Id. at pp. 39-40.) The defendant in Egelhoff was charged with deliberate homicide, a crime Montana law defined as "'purposely'" or "'knowingly'" causing the death of another human being. (Id. at p. 40.) The defendant argued the Montana statute barring evidence of voluntary intoxication to show the absence of the requisite mental state violated his due process right to present all relevant evidence rebutting the prosecution's evidence on the offense charged. (Id. at p. 41.)
A plurality opinion authored by Justice Scalia explained criminal defendants have no absolute right to introduce relevant evidence and the Montana statute would violate due process only if the defendant showed his "right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a 'fundamental principle of justice.'" (Egelhoff, supra, 518 U.S. at pp. 42-43.) The plurality concluded a defendant's right to present voluntary intoxication evidence was not a fundamental principle of justice because both common-law tradition and a considerable minority of states either prohibited or significantly limited a criminal defendant's use of voluntary intoxication evidence. (Id. at pp. 48-49.)
Justice Ginsburg wrote a separate concurring opinion joining in the conclusion the Montana statute did not violate due process.She distinguished between statutes designed to keep out relevant, exculpatory evidence that might negate an essential element of the offense charged, and statutes that redefine the elements of the charged offense and therefore render certain evidence irrelevant. (Egelhoff, supra, 518 U.S. at p. 57 (conc. opn. of Ginsburg, J.).) A statute barring relevant, exculpatory evidence violates due process, but a statute that redefines the mental state element does not. "'A state legislature certainly has the authority to identify the elements of the offenses it wishes to punish,' [citation], and to exclude evidence irrelevant to the crime it has defined." (Ibid.)Justice Ginsburg concluded the Montana statute redefined the mental state element because it "embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions." (Ibid.)
In a footnote, the plurality opinion noted it is "in complete agreement" with Justice Ginsburg's analysis. (Egelhoff, supra, 518 U.S. at p. 50, fn. 4.)
Both parties agree Justice Ginsburg's concurrence constitutes the holding in Egelhoff and therefore is controlling. (Timms, supra, 151 Cal.App.4th at pp. 1299-1300.) Under Justice Ginsburg's analysis, Montana's definition of murder, "supplemented by the intoxication statute stands for the proposition that a person is guilty of Deliberate Homicide if she kills purposely or knowingly or, in the case of a voluntarily intoxicated person, if she simply kills another person, even if the killing was not purposeful or knowing. According to this reading, which approximates concurring Justice Ginsburg's understanding of Montana law, Winship and Patterson are not violated because, in essence, the legislature has defined murder two ways, one way to deal with sober killers (they are not guilty of murder unless they purposely or knowingly — intentionally — took a human life), and another way to deal with intoxicated killers (they are guilty of murder if they took a human life even accidentally). Therefore, according to this reading of Montana law, in regard to voluntarily intoxicated defendants, there is no mental state element in the murder statute for the State to prove beyond a reasonable doubt. This is arguably a highly objectionable way to define murder, but it would not offend the Winship doctrine (all elements of the crime are proven beyond a reasonable doubt)." (Dressler, Understanding Criminal Law (4th ed. 2005) § 7.03, p. 80, italics original.)
Based on Justice Ginsburg's concurring opinion, Schuetz characterizes section 22 as an evidentiary statute that excludes relevant exculpatory evidence. In Timms, however, the Court of Appeal rejected that characterization and concluded section 22 redefined the required mental state element: "[S]ection 22 is part of California's history of limiting the exculpatory effect of voluntary intoxication and other capacity evidence. [Citations.] . . . Since 1872, the first sentence of section 22 (now at subdivision (a)) has declared the policy of this state that an act is not less criminal because the actor committed it while voluntarily intoxicated. . . . The next sentence declares the substantive law that voluntary intoxication is not available to a defendant as a basis for a diminished capacity defense. Subdivision (b) [of section 22] establishes, and limits, the exculpatory effect of voluntary intoxication on the required mental state for a particular crime. . . . 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, 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.' [Citation.]" (Timms, supra, 151 Cal.App.4th at pp. 1300-1301.)
Although Schuetz cites Timms, she makes no effort to distinguish it. Instead, she argues Egelhoff does not permit the Legislature to both prohibit a defendant from using voluntary intoxication evidence to negate implied malice, and allow the prosecution to use that same evidence to prove implied malice. In Egelhoff, however, both Justice Ginsburg's concurring opinion and Justice Scalia's plurality opinion cited with approval a Hawaii Supreme Court decision upholding a state statute that did precisely that. (Egelhoff, supra, 518 U.S. at pp. 48, fn. 2, 59 (conc. opn. of Ginsburg, J.) Specifically, in State v. Souza (1991) 72 Haw. 246 (Souza), the Hawaii Supreme Court rejected a due process challenge to a statute that, in relevant part, provided as follows: "Evidence of self-induced intoxication of the defendant is admissible to prove or negative conduct or to prove state of mind sufficient to establish an element of an office. Evidence of self-induced intoxication of the defendant is not admissible to negative the state of mind sufficient to establish an element of the offense." (Id. at p. 249, original italics.) By citing Souza and the statute it upholds, the Egelhoff court implicitly concluded that a statute allowing voluntary intoxication evidence to prove, but not disprove, the requisite mental state of a charged offense, in effect, redefined the mental state of the offense. As Egelhoff explained, a legislative redefinition of the mental state element under these circumstances did not offend due process.
Based on Timms and the Supreme Court's decision in Egelhoff, we conclude section 22 redefines the mental state for implied malice murder. Accordingly, section 22 does not violate Schuetz's due process rights.
We also conclude Schuetz's equal protection claim lacks merit. "A defendant claiming that state legislation violates equal protection principles must first demonstrate that the laws treat persons similarly situated in an unequal manner." (Timms, supra, 151 Cal.App.4th at p. 1302.) Schuetz fails to identify any persons similarly situated who are treated differently under section 22. She complains that section 22 treats the prosecution and the defense differently because it precludes her from using voluntary intoxication evidence to negate implied malice, while simultaneously allowing the prosecution to use that same evidence to prove implied malice. Obviously, the prosecution and defense are not similarly situated and this differential treatment does not violate equal protection. Schuetz's argument is really a due process challenge masquerading as an equal protection challenge. Construed in that manner, it fails for the reasons already discussed. B. Schuetz Was Not Entitled to Instructions on Involuntary Manslaughter or Gross Vehicular Manslaughter
Although she concedes she did not ask the trial court to instruct the jury on any offense other than murder, Schuetz nonetheless contends the trial court had a sua sponte duty to instruct the jury on involuntary manslaughter (§ 192, subd. (b)) and gross vehicular manslaughter while intoxicated (§ 191.5). According to Schuetz, the trial court's failure to instruct on these lesser offenses violated her due process right to a fair trial because the jury had no alternative to a murder conviction other than acquitting Schuetz for causing Whang's death.
The prosecution possesses broad discretion in deciding which charges to bring against a defendant and the "courts do not generally supervise [this] 'purely prosecutorial function.' [Citations.]" (People v. Ceja (2010) 49 Cal.4th 1, 7; People v. Richardson (2008) 43 Cal.4th 959, 1013; see also United States v. Batchelder (1979) 442 U.S. 114, 124 (Batchelder).)Due process, however, limits this discretion and imposes a sua sponte duty on trial courts to instruct the jury on a lesser included offense "when the evidence warrants such an instruction." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 (Gutierrez); Hopper v. Evans (1982) 456 U.S. 605, 611.) "Instruction on a lesser included offense is required only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt."(People v. Moore (2011) 51 Cal.4th 386, 408-409 (Moore).)
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)
In contrast, "a trial court has no sua sponte duty to instruct on lesser related offenses." (People v. Lam (2010) 184 Cal.App.4th 580, 583.) "[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. Valentine (2006) 143 Cal.App.4th 1383, 1387 (Valentine).)There is no constitutional right to a jury instruction on a lesser related offense. (Hopkins v. Reeves (1998) 524 U.S. 88, 96-97 (Hopkins); People v. Foster (2010) 50 Cal.4th 1301, 1344 (Foster).)
"A lesser related offense is one 'closely related to that charged and [for which] the evidence provides a basis for finding the defendant guilty [while finding him] innocent of the charged offense.' [Citation.]" (People v. Babaali (2009) 171 Cal.App.4th 982, 1000.)
Involuntary manslaughter is generally classified as a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 989 (Sanchez), overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) In defining involuntary manslaughter, however, section 192, subdivision (b), states "[t]his subdivision shall not apply to acts committed in the driving of a vehicle." Because Schuetz caused Whang's death while driving a vehicle, Schuetz could neither be charged nor convicted of involuntary manslaughter. As stated above, a defendant has a due process right to a jury instruction on a lesser included offense only when the evidence would support a conviction on the lesser included offense. (Gutierrez, supra, 28 Cal.4th at p. 1145; Moore, supra, 51 Cal.4th at pp. 408-409.) Given that Schuetz could not be convicted of involuntary manslaughter, she had no due process right to an instruction on involuntary manslaughter as a lesser included offense. Moreover, because section 192, subdivision (b), excludes "acts committed in the driving of a vehicle" from involuntary manslaughter's definition, involuntary manslaughter is not a lesser included offense to implied malice murder committed while driving a vehicle.
Gross vehicular manslaughter while intoxicated is not a lesser included offense to murder, but rather a lesser related offense. (Sanchez, supra, 24 Cal.4th at p. 992.) A defendant has no constitutional right to a jury instruction on a lesser related offense (Foster, supra, 50 Cal.4th at p. 1344; Hopkins, supra, 524 U.S. at pp. 96-97), and therefore Schuetz had no constitutional right to an instruction on gross vehicular manslaughter.
Schuetz disputes none of these authorities, but nonetheless argues she had a constitutional right to instructions on lesser offenses so she could present to the jury an alternative to murder other than an outright acquittal. But, as the Court of Appeal recognized in Valentine, "[I]t has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged." (Valentine, supra, 143 Cal.App.4th at p. 1387.)
Schuetz relies on the United State Supreme Court decision in Keeble v. United States (1973) 412 U.S. 205 (Keeble), but that decision does not establish the constitutional right Schuetz urges us to find. In Keeble, the prosecution charged a Native American defendant with assault with intent to commit serious bodily injury under the Major Crimes Act of 1885 (18 U.S.C. § 1153). That act allowed prosecution of Native Americans in federal court for certain identified crimes committed on Indian reservations. The defendant requested a jury instruction on simple assault as a lesser included offense, even though the act did not list simple assault as a crime. (Keeble, at pp. 205-207.)
The Supreme Court concluded the district court erred in failing to give the instruction, but reached that conclusion as a matter of statutory interpretation, not constitutional law. (Keeble, supra, 412 U.S. at pp. 209-212.) The court explained: "[W]hile we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions. In view of our interpretation of the Act, those are questions that we need not face." (Id. at p. 213.) Accordingly, Keeble does not establish or support the constitutional right Schuetz urges us to adopt in her case.
Finally, Schuetz contends that defining involuntary manslaughter under section 192 to exclude "acts committed in the driving of a vehicle" violated her right to equal protection. According to Schuetz, all defendants charged with implied malice murder are "entitled" to a jury instruction on involuntary manslaughter as a lesser included offense, except those defendants charged with "acts committed in the driving of a vehicle."
Schuetz, however, bases her argument on a faulty premise: Not all defendants charged with implied malice murder are entitled to a jury instruction on involuntary manslaughter as a lesser included offense. A defendant is entitled to an instruction on a lesser included offense only if the record contains substantial evidence of the lesser offense. (Moore, supra, 51 Cal.4th at pp. 408-409.) Contrary to Schuetz's suggestion, the evidence in an implied malice murder case does not necessarily require a jury instruction on involuntary manslaughter as a lesser included offense. (See, e.g., People v. Dixon (1995) 32 Cal.App.4th 1547, 1550, 1556-1558 [defendant charged with second degree murder not entitled to instruction on involuntary manslaughter as a lesser included offense because substantial evidence did not support the instruction]; People v. Evers (1992) 10 Cal.App.4th 588, 598 [same].)
Schuetz's true challenge appears to be that the prosecution had the discretion to charge her with two different offenses — implied malice murder and vehicular manslaughter while intoxicated — and chose to charge her only with the offense carrying the greater punishment. We recognize the failure to charge related offenses may present the jury with a difficult choice between conviction or acquittal. Nevertheless, neither the Legislature adopting two statutes prescribing different punishments for the same conduct, nor a prosecutor charging a defendant only under the statute imposing the greater punishment, violates equal protection principles. (People v. Wilkinson (2004) 33 Cal.4th 821, 838; see also Batchelder, supra, 442 U.S. at pp. 124-125; People v. Valladares (2009) 173 Cal.App.4th 1388, 1398-1399.) C. The Trial Court Properly Excluded Expert Testimony Regarding Unconsciousness Caused by Voluntary Intoxication
Schuetz contends the trial court erred in excluding Rappaport's expert medical testimony on her unconsciousness defense. We conclude, however, the trial court properly excluded Rappaport's testimony because unconsciousness induced by voluntary intoxication is not a defense to implied malice murder and cannot be used to negate implied malice.
Generally speaking, unconsciousness is a complete defense to a crime, including homicide. (§ 26, subd. Four; People v. Ochoa (1998) 19 Cal.4th 353, 423 (Ochoa).) It is not a complete defense, however, when voluntary intoxication causes the unconsciousness. (Ochoa, at p. 423; § 22, subd. (a) ["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"]; People v. Walker (1993) 14 Cal.App.4th 1615, 1621 ["Unconsciousness caused by voluntary intoxication is . . . governed by section 22, [fn. omitted.] not section 26"].) Voluntary intoxication "'can never excuse homicide.'" (Ochoa, supra, 19 Cal.4th at p. 423.)
As explained above, section 22(b) permits voluntary intoxication evidence solely to show whether a defendant actually formed "a required specific intent," including "express malice aforethought." (§ 22, subd. (b).) Before the 1995 amendments to section 22(b), "[w]hen a person render[ed] himself or herself unconscious through voluntary intoxication and kill[ed] in that state, the killing [was] attributed to his or her negligence in self-intoxicating to that point, and [was] treated as involuntary manslaughter." (Ochoa, supra, 19 Cal.4th at p. 423; People v. Turk (2008) 164 Cal.App.4th 1361, 1376-1377 (Turk).)
The 1995 amendment to section 22(b), however, limited the use of voluntary intoxication evidence to negate express malice only, not implied malice. (Turk, supra, 164 Cal.App.4th at p. 1375; Timms, supra, 151 Cal.App.4th at p. 1298.) Now, "a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate, in the wake of the 1995 amendment to section 22, subdivision (b). [(Fn. omitted.)] To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder." (Turk, supra, 164 Cal.App.4th at pp. 1376-1377.)
As Schuetz points out, there is no "definitive guidance from the Supreme Court" regarding whether unconsciousness caused by voluntary intoxication can reduce implied malice murder to involuntary manslaughter. (Turk, supra, 164 Cal.App.4th at p. 1376.) The Supreme Court, however, has stated in dicta "it now appears that defendant's voluntary intoxication, even to the point of actual unconsciousness, would not prevent his conviction of second degree murder on an implied malice theory . . . ." (People v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40, italics added; Turk, supra, at p. 1376.) That is consistent with section 22's plain meaning after the 1995 amendments: voluntary intoxication evidence is not admissible to "negate the capacity to form any mental state for the crimes charged" and may only be used to show a defendant did not actually harbor express malice, not implied malice. (§ 22, subds. (a) & (b); Turk, at p. 1375; Timms, supra, 151 Cal.App.4th at p. 1298.)
Schuetz offered Rappaport's testimony to establish she voluntarily consumed alcohol to the point of unconsciousness and could not form the mental state required for implied malice murder because she could not subjectively appreciate the risk her driving posed to human life. That, however, is precisely what section 22 prohibits and therefore the trial court properly excluded the testimony. The trial court also properly precluded Rappaport from testifying about unconsciousness in general and how an unconscious person could still operate a car. Unconsciousness had no bearing on her mental state because Schuetz caused her alleged unconsciousness by voluntarily becoming intoxicated.
If evidence regarding unconsciousness was inadmissible, Schuetz contends the trial court nonetheless should have allowed Rappaport to testify regarding her "social history, below average intelligence and impaired psychological, social and occupational functioning . . . ." Schuetz contends section 28, subdivision (a), made testimony on these subjects admissible as "[e]vidence of mental disease, mental defect, or mental disorder . . . on the issue of whether or not [she] actually formed a required specific intent . . . or harbored malice aforethought . . . ."
Schuetz, however, never asked the trial court to admit any testimony regarding her background and life experiences for that purpose. Schuetz only asked the trial court to allow Rappaport to testify regarding unconsciousness. As explained by Schuetz's counsel, "essentially what [Rappaport] would testify to, is that based on his evaluation of the reports that he read, his testing and interviewing of the defendant, that at the time she took control of the vehicle and was driving, she was essentially an automaton, that she was unconscious of her actions and was not legally conscious as far as how it would be defined in the law of unconsciousness and involuntary intoxication."
The trial court cannot err by excluding evidence based on a theory of admissibility Schuetz never offered or explained. Moreover, although Rappaport's report discussed Schuetz's family background and life experiences, it provided no explanation how her background and experiences prevented her from subjectively appreciating the danger she posed by driving while under the influence. Rappaport's report discussed Schuetz's background and life experiences to explain her drinking and poor judgment, but that does not show she did not actually harbor implied malice when she drove her car and collided with Whang.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O'LEARY, J.