Opinion
C054853
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ANGELO ZANINI, Defendant and Appellant.
Not to be Published
A jury convicted defendant Christopher Angelo Zanini of first degree felony murder (carjacking) and found true a special circumstance that he committed the murder in the commission of the carjacking. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17)(L), respectively.) The jury also convicted defendant of carjacking, evading a peace officer causing death, hit and run resulting in death, and two offenses of driving under the influence (DUI), all felonies. (Pen. Code, § 215; Veh. Code, §§ 2800.3, 20001, 23153, subd. (a), 23153, subd. (b), respectively.)
Sentenced to life without the possibility of parole (LWOP), defendant appeals. He principally contends (1) that the carjacking, murder and special circumstance verdicts are based on insufficient evidence, and (2) that the trial court erred prejudicially (a) in responding to jury questions about force and about car theft versus carjacking, and (b) in withdrawing instruction on the (legally inapplicable) main defense theory (involuntary manslaughter) just before the defense began its closing argument. We find no prejudicial error and affirm the convictions, but we remand for a determination of penalty assessments, if any, regarding the count 5 DUI fine.
BACKGROUND
The victim, Angel Jimenez, apparently jumped onto the running board of his Suburban SUV while defendant was driving the vehicle away from Jimenezs residence. No prosecution witness saw the original taking of the vehicle. Aside from defendant, who testified, Stockton Police Officer Christopher Slate was the only other witness to defendants driving behavior, which comprised the convictions here.
Officer Slate testified that at 10:30 p.m. on January 6, 2006, while driving eastbound on Charter Way in a patrol car, he noticed an SUV stopped in the westbound lanes at a stoplight. There was a man (later identified as Jimenez) standing on the SUVs running board right outside the drivers door. (At this point, the SUV was .4 miles from Jimenezs residence; the driver was later determined to be defendant.)
Officer Slate made a U-turn and got behind the SUV, which had begun traveling westbound with Jimenez still outside the drivers door. On Charter Way near the Interstate-5 underpass, Slate activated his lights and, shortly thereafter, his siren.
Defendant failed to yield and continued westbound, turning south onto Stockton Street just beyond the underpass. This was not a safe turn, Slate opined, because defendant failed to slow for it. Defendant began speeding (around 40 miles per hour (mph) in a 25 mph zone), but he was not driving erratically and was going straight.
Defendant, though, did not "even slow down" at a stop sign at the intersection of Stockton and Fifth Street (with Jimenez still aboard). Then, at the T-intersection of Stockton and Eighth Street, defendant made a "sudden, wide, right turn" without slowing down (ignoring the stop sign on Stockton), and Jimenez fell off the SUV. A collision investigator described this turn as "very sharp" and opined it was made at 30 mph. Officer Slate stopped to assist Jimenez. The rear of Jimenezs skull had been shattered "like an eggshell." He died of head trauma the next day.
The distance from Jimenezs residence to where he fell off the SUV was 1.6 miles. The distance from where Officer Slate first spotted the SUV on Charter Way to where Jimenez fell off was just over one mile, and the pursuit lasted around a minute and a half to two minutes. Officer Slate never saw Jimenez gesturing, kicking or knocking at the drivers door, and could not tell whether Jimenez was speaking or yelling. Slate never saw the SUV "swerving" as if to dislodge Jimenez.
Defendant eventually crashed the SUV into a tree at the intersection of Eighth and Houston, about 1.2 miles from where Jimenez had fallen off. After emerging from the crash, defendant asked a neighbor in the area, who was walking his dog, where the (apparently) nearby Diamond Oaks Street was (defendants cousin lived on Diamond Oaks; see defendants testimony, post). Other officers apprehended defendant shortly thereafter. Defendant displayed a strong odor of alcohol, slow and slurred speech, and unsteadiness. His blood was drawn at 12:50 a.m. on January 7, and had an alcohol content of .12 percent.
Defendant, then 27 years old, testified at trial. He said he had been paroled the day before the incident. He acknowledged he had prior convictions for grand theft and second degree burglary. His cousin, Joel, picked him up on the afternoon of January 6 after defendant had checked in with his parole officer, and the two went to the home of another cousin (Joey, who lived on Diamond Oaks and with whom an officer spoke). Various travels and alcoholic drinking ensued from this point, with Joel as the designated driver. Eventually, Joel dropped defendant off at defendants ex-girlfriends house, but failed to pick defendant up as planned; so defendant started the long trek back to Joeys on foot.
As he walked, defendant began looking into cars. He came across Jimenezs SUV, which had an unlocked rear passenger door. He was starting to pull out the stereo when he discovered that the ignition could be started without a key. He was "very drunk." He was going to use the SUV for his ride to Joeys and then ditch it.
Defendant started driving the SUV. As he was stopped at a light on Charter Way, a police car drove past him. Before he knew it, there were spotlights and sirens about him; his head was "spinning even more." Not wanting to go back to prison, he tried to evade the police. He drove past Interstate-5, turned off of Charter and started going "kind of fast." He turned onto Eighth to go toward Joeys house; he slowed a little, but was still going "pretty fast." After this turn, the lights and sirens faded, but he lost control of the SUV at another T-intersection and hit a tree. He ran and hid for a while, and then asked a man, who was walking a dog, for directions to his cousins. Shortly thereafter, he was arrested.
Defendant claimed he never saw Jimenez on the SUV. He attributed this to his intoxication, his resulting blurred peripheral vision, and slightly fogged windows.
DISCUSSION
1. Sufficiency of the Evidence: Carjacking, Murder and Special Circumstance
Defendant contends the evidence is insufficient to support the carjacking and murder convictions and the special circumstance finding. We disagree.
The jury convicted defendant of first degree felony murder based on a carjacking, and found true the special circumstance of murder in the commission of carjacking. The first degree felony-murder offense here is statutorily defined as "murder . . . committed in the perpetration of . . . carjacking . . . ." (Pen. Code, § 189.) And the special circumstance finding here is defined as first degree murder "committed while the defendant was engaged in . . . the commission of [¶] . . . [¶] . . . [c]arjacking, as defined in [Penal Code] Section 215." (Pen. Code, § 190.2, subd. (a)(17)(L).) Penal Code section 215, subdivision (a), defines "[c]arjacking," as relevant here, as "the felonious taking of a motor vehicle in the possession of another, from his . . . person or immediate presence, . . . against his . . . will and with the intent to either permanently or temporarily deprive the person . . . of his . . . possession, accomplished by means of force or fear."
The carjacking offense constitutes the hub of the challenges defendant makes here. Without that offense, there is no first degree felony murder and no special circumstance murder. (On the offense of murder, the jury was alternatively instructed on implied malice second degree murder [i.e., a dangerous act with conscious disregard for human life]. Defendant also wanted an involuntary manslaughter instruction as a lesser offense to murder, but, as we shall see later, that instruction was legally inapplicable and there was no prejudicial error concerning the lack of a vehicular manslaughter instruction. On the offense of carjacking, the jury was also instructed on the lesser offense of unlawfully taking or driving a vehicle [i.e., joyriding/auto theft; Veh. Code, § 10851].)
As noted, defendant raises evidentiary sufficiency challenges. In determining whether the evidence is sufficient, we must review the whole record in the light most favorable to the challenged findings and determine whether the record contains substantial evidence—i.e., reasonable and credible evidence—from which a rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.)
As for the alleged insufficiency of the evidence concerning the carjacking, defendant contends: "[T]his was a drunken joyride to get a ride home which turned into police evasion, not a . . . carjacking; none of the driving, before or after police began pursuit, really constituted an intentional attempt to dislodge Mr. Jim[e]nez from the vehicle so as to deprive him of possession. [Defendant] should not stand convicted of LWOP murder for an unusual vehicular homicide committed during a car theft without intent to kill or intent to deprive Mr. Jim[e]nez of possession using force."
Defendant centers his insufficiency argument on two elements of the carjacking offense. The jury was properly instructed on both. The first element is that defendant must have "used force or fear to take the vehicle or to prevent [Jimenez] from resisting." (CALCRIM No. 1650.) The second is that "[w]hen the defendant used force or fear to take the vehicle, he intended to deprive [Jimenez] of possession of the vehicle either temporarily or permanently." (Ibid.)
As we shall explain, there is sufficient evidence to support these two elements and the offense of carjacking. The jury rationally could have disagreed with defendants characterization of the offenses as "a drunken joyride to get a ride home [i.e., to cousin Joeys] which turned into police evasion, not a . . . carjacking."
The biggest problem with defendants characterization of the offenses is the human life that clung to the outside of the vehicle throughout almost the entire incident. What may have been a drunken joyride in the self-serving eyes of defendant was anything but for Mr. Jimenez. Viewing the evidence in the light most favorable to the judgment, we may infer that Jimenez was on the vehicle for nearly half a mile before the police pursuit even began. Jimenez remained on the vehicle for a little over a mile after the pursuit started. The pursuit alone took from a minute and a half to two minutes. During the pursuit with Jimenez aboard, defendant accelerated to 40 mph in a 25 mph zone, blew through one stop sign without even slowing down, and then, at the next stop sign—a T-intersection—made a "sudden," "very sharp" right turn at 30 mph. It was this sudden, very sharp, 30 mph right turn that threw Jimenez off the car and effectively "shattered" his skull "like an eggshell." The pathologist who performed Jimenezs autopsy testified that it "takes a great deal of force to shatter the skull this way."
In light of this evidence—particularly the turn that threw Jimenez off the vehicle—a rational jury could have found that defendant used force or fear to take the vehicle or to prevent Jimenez from resisting, and that when defendant used force or fear he intended to deprive Jimenez of possession of the vehicle temporarily or permanently.
Once defendant was found to have intended to commit carjacking before or at the time of the act causing the death, the first degree felony-murder conviction fell in line so long as the act causing death—even if it was an unintentional, accidental or negligent killing—took place during the commission of the carjacking (i.e., the act causing the death and the carjacking were part of one continuous transaction). (Pen. Code, § 189; CALCRIM No. 540A, given here.) For the reasons expressed above, a rational jury could have found first degree felony murder based on the carjacking.
That brings us to the jurys finding of special circumstance murder, also based on the carjacking. A felony-murder special circumstance, such as carjacking-murder, must be based on a murder that occurs during the commission of a carjacking, and not on a carjacking that occurs during the commission of a murder. (Pen. Code, § 190.2, subd. (a)(17)(L); People v. Mendoza (2000) 24 Cal.4th 130, 182; People v. Green (1980) 27 Cal.3d 1, 59-62.) This concept may be expressed in two equivalent ways: one, the murder was committed to carry out or advance the carjacking; or two, the special circumstance is not established if the carjacking was merely incidental to the commission of the murder. (People v. Horning (2004) 34 Cal.4th 871, 907-908 (Horning).) A strict causal or temporal relationship between the carjacking and the murder is not required; what is required is proof beyond a reasonable doubt that the defendant intended to commit the carjacking at the time he killed the victim (i.e., some sort of logical connection between the carjacking and the fatal act), and that the carjacking and the fatal act were part of one continuous transaction. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.)
The CALJIC instruction on felony-murder special circumstance, CALJIC No. 8.81.17 (which was not given here), sets forth both of these equivalent expressions by first stating the "carry out or advance" way and then stating the second way in the following terms: "In other words, the special circumstance . . . is not established if the [felony] was merely incidental to the commission of the murder." (See Horning, supra, 34 Cal.4th at pp. 907-908.) Defendant argues that the applicable CALCRIM instruction, CALCRIM No. 730 (which was given here), effectively eliminated the nonincidental felony requirement. We disagree. CALCRIM No. 730, as given, stated as pertinent: "In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit carjacking[] independent of the killing. If you find that the defendant only intended to commit murder and that the commission of carjacking was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved." Horning itself approves of this "`independent purpose" language for the underlying felony. (Horning, supra, at p. 908, fn. 8.)
Here, the trial court properly instructed on special circumstance murder along these lines. The court instructed: defendant must have intended to commit the carjacking before or at the time he did an act that caused Jimenezs death; defendant must have intended to commit carjacking independent of the killing; there must have been a logical connection between the carjacking and the fatal act involving more than just their occurrence at the same time and place; the carjacking and the act causing death must have been part of one continuous transaction; and if the commission of the carjacking was merely part of or incidental to the commission of the murder, then the special circumstance had not been proved. (CALCRIM No. 730.)
We conclude that a rational jury could have found true the carjacking-murder special circumstance alleged against defendant. The evidence shows that defendants focus was to take Jimenezs SUV and that Jimenez was on the vehicle during much of the taking. A jury rationally could conclude from the evidence that defendants sudden, very sharp, 30 mph right turn, was made to force Jimenez off the vehicle, to prevent Jimenez from resisting. This act caused Jimenezs death. From the evidence, then, the jury reasonably could find that the murder was committed to carry out or advance the carjacking, i.e., that this was a murder in the commission of a carjacking rather than a carjacking in the commission of a murder.
Defendant disagrees with this analysis, noting that by "the time of the fateful turn, the gravamen of the crime was vehicular homicide during evasion, not a joyride-carjacking [because defendant] was not even trying to dislodge [Jimenez] or deprive him of possession." Again, though, a jury, on the evidence here, rationally could also find that defendant made the fateful turn to force Jimenez off the vehicle so defendant could complete his taking of it. Defendant had continued with the taking for a significant period before the police even got involved.
2. Instructional Issues— (A) Responding to Jury Questions on Force and on Auto Theft versus Carjacking; (B) Withdrawing Instruction on Main Defense Theory of Involuntary Manslaughter; and (C) Providing Non-Unanimity Instruction on the Two Murder Theories
Defendant contends the trial court erred prejudicially in these three respects. We disagree, discussing each in turn.
A. Responding to jury questions on force and on auto theft versus carjacking
Pressing the defense theme that the principal act here constituted a joyride-vehicular homicide rather than a carjack-felony murder, defendant claims the trial court erred prejudicially in responding to two questions from the jury.
During deliberations, the jury sent the following three questions together to the trial judge:
1. "In count 2, carjacking[,] is [sic] `[f]orce used in item 4 in [CALCRIM No.] 1650 (carjacking) be the force of the engine accelerating to prevent that person from resisting?"
2. "Can you clarify `immediate presence in [item] 2 on [CALCRIM No. 1650]."
3. "Can auto theft become a carjacking if a car becomes stolen and victim attempts to regain control of [his or her] automobile?"
On appeal, defendant contends the trial judge failed to define what is sufficient force for carjacking in answer to question No. 1, and erroneously explained the difference between auto theft and carjacking in question No. 3 in terms of the duration of felony murder rather than in terms of force. Defendant claims the trial courts responses to these two questions prejudicially denied him due process and the right to present a defense. We do not find any prejudicial error.
The trial judge answered question No. 1 as follows: "I interpret that [question] to mean may the force required in the definition of carjacking constitute the force of the engine accelerating to prevent that person from resisting. The answer [is]: The jury may find that to be true. May. Not required to."
Defendant contends the trial court should have answered question No. 1, and even provided instruction on its own motion, that the force required for carjacking must be a force beyond that needed to effect the taking, must be applied against a person, and must be motivated by an intent to deprive. Several cases have held that the force element of robbery (and by analogy, carjacking) has no technical legal meaning and is an element presumably understood by jurors. (See, e.g., People v. Anderson (1966) 64 Cal.2d 633, 640.) However, defendant looks to purse-snatching cases that have discussed the amount of force required to elevate a grand theft to a robbery. (See, e.g., People v. Morales (1975) 49 Cal.App.3d 134, 139 (Morales) [for robbery, "something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property"].) And defendant notes that the prosecutor and defense counsel disagreed in their closing arguments about whether any acceleration or driving constituted sufficient force.
The jurys question No. 1 concerned the fourth element of the carjacking instruction of CALCRIM No. 1650, which was given here: "The defendant used force or fear to take the vehicle or to prevent [the victim] from resisting[.]" The jurys question asked whether the term "force" in this instruction could encompass the "force of the engine accelerating to prevent [the victim] from resisting." The trial judge answered it could, if found to be so by the jury.
The language the jury used to phrase its question No. 1 indicates the jury understood the element of force required for carjacking, and further indicates the jury understood this element in the manner upon which defendant chastises the trial court for not instructing. The language in question No. 1—"force of the engine accelerating to prevent [the victim] from resisting"—necessarily had to be force applied by defendant against Jimenez beyond that required "to accomplish the mere seizing of the property." (Morales, supra, 49 Cal.App.3d at p. 139.) This is because acceleration was a force that could be applied only by defendant and this force was designed, according to the query posed in question No. 1, to prevent Jimenez from resisting the taking. Force that overcomes or prevents resistance to the taking legally elevates a grand theft to a robbery (and by analogy, to a carjacking). (Ibid.) Furthermore, the fifth element of the CALCRIM instruction given here on carjacking added: "When the defendant used force or fear to take the vehicle, he intended to deprive the [victim] of possession of the vehicle either temporarily or permanently."
We conclude the trial court properly answered the jurys question No. 1.
Defendant fares no better when we turn to the other response he challenges, the trial judges response to the jurys question No. 3: "Can auto theft become a carjacking if a car becomes stolen and victim attempts to regain control of [his or her] automobile?"
In answering this question, the trial judge stated: "[CALCRIM] Instruction Number 549, felony murder, one continuous transaction . . . covers that. Im going to read that again.
"In order for the People to prove that the defendant is guilty of murder under a theory of felony murder, and that the special circumstance of murder committed while engaged in the commission of carjacking is true, the People must prove that the carjacking and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time and in more than one location.
"In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors:
"1. Whether the felony and the fatal act occurred at the same place.
"2. The time period, if any, between the felony and the fatal act.
"3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony.
"4. Whether the fatal act occurred after the felony, but while the perpetrator continued to exercise control over the person who was the target of the felony.
"5. Whether the fatal act occurred while the perpetrator was fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime.
"6. Whether the felony was the direct cause of the death; and
"7. Whether the death was a natural and probable consequence of the felony.
"It is not required that the People prove any one of these factors or any particular combination of these factors. The factors are given to assist you in deciding whether the fatal act and the felony are part of one continuous transaction.
"So thats number 549.
"Does that answer the question?"
Juror No. 7 answered, "Yes, it does."
Defendant contends that this response to question no. 3—by defining the difference between auto theft and carjacking in terms of the duration of felony murder, rather than in terms of the force required for carjacking—all but guaranteed defendant an LWOP sentence because death occurred during one continuous transaction. Defendant explains: the trial judges response made the central determination in this case of auto theft versus carjacking a foregone conclusion; to determine whether defendant committed carjacking, jurors were told only to examine whether the death occurred during one continuous transaction that began with auto theft, not whether defendant intentionally used force against Jimenez beyond the taking to obtain or retain possession during this strange joyride-turned-pursuit. In short, defendant contends that the trial courts response made defendant liable for carjacking (and thus special circumstance murder) as long as a homicide occurred during one continuous transaction involving vehicle theft.
Admittedly, the trial courts response to question No. 3 did not answer the question, failing to explain that an auto theft may become a carjacking if the elements of carjacking are met. (People v. ONeil (1997) 56 Cal.App.4th 1126, 1131 ["mere vehicle theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle without use of force or fear, resorts to force or fear while driving off with the vehicle"].) In short, the trial judge incorrectly failed to answer question No. 3 with a simple "yes, if the elements of carjacking are met."
Nevertheless, we fail to see how the trial courts response to question No. 3—instead of the response "yes, if the elements of carjacking are met"—prejudiced defendant.
In reviewing federal and state constitutional challenges to an ambiguous and confusing instruction, we ask whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the instruction in the objectionable fashion alleged. (People v. Osband (1996) 13 Cal.4th 622, 679 (Osband); People v. Clair (1992) 2 Cal.4th 629, 663; People v. Kelly (1992) 1 Cal.4th 495, 524-525; People v. Ochoa (1998) 19 Cal.4th 353, 420-421; Estelle v. McGuire (1991) 502 U.S. 62, 72 .)
Essentially, defendant alleges there is a reasonable likelihood that the jury misconstrued or misapplied the trial courts response to question No. 3 to find carjacking and special circumstance murder, because a homicide took place during one continuous transaction that began with vehicle theft. We disagree for four reasons.
First, the challenged response to question No. 3 did not mention vehicle theft. It stated, as relevant here: "In order for the People to prove that the defendant is guilty of murder under a theory of felony murder, and that the special circumstance of murder committed while engaged in the commission of carjacking is true, the People must prove that the carjacking and the act causing the death were part of one continuous transaction. . . . [¶] In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors . . . ." (Italics added.)
Second, the challenged response required the People to prove the offense of carjacking. The jury had been properly instructed on the elements of carjacking (which included force) and on the elements of auto theft (which did not).
Third, the jury was well aware of the critical element of force distinguishing carjacking from auto theft. This is evident from the language of the three jury questions that we are considering here, which the jury submitted to the trial court as a package. Question No. 1 specifically identified the "force" element in the carjacking instruction (CALCRIM No. 1650, element 4)—"defendant used force or fear to take the vehicle or to prevent [the victim] from resisting"—and asked whether an engine-accelerating force to prevent the victim from resisting could constitute such "force." Question No. 2 specifically identified the "immediate presence" element in the carjacking instruction given ("The vehicle was taken from the immediate presence of a person who possessed the vehicle . . ."). And question No. 3 itself inquired about auto theft becoming a carjacking where the victim attempts to regain control of the automobile (i.e., where the victim "resists" the taking). These elements of "force," of "immediate presence," and of "resistance," are elements of carjacking, not auto theft, and were properly instructed upon in the carjacking instruction the jury had.
Fourth and finally, question Nos. 1 and 3 are based on the same theme: the victim attempting to resist the taking of the vehicle. This theme implicates the force element of the carjacking offense; this element, as the trial court instructed, required the jury to find: "defendant used force or fear to take the vehicle or to prevent [the victim] from resisting." (Italics added.) In this vein, what we said previously with respect to question No. 1 has pertinence here as well: "The language the jury used to phrase its question No. 1 indicates the jury understood the element of force required for carjacking, and further indicates the jury understood this element in the manner upon which defendant chastises the trial court for not instructing. The language in question No. 1—`force of the engine accelerating to prevent [the victim] from resisting—necessarily had to be force applied by defendant against Jimenez beyond that required `to accomplish the mere seizing of the property. (Morales, supra, 49 Cal.App.3d at p. 139.) This is because acceleration was a force that could be applied only by defendant and this force was designed, according to the query posed in question No. 1, to prevent Jimenez from resisting the taking. Force that overcomes or prevents resistance to the taking legally elevates a grand theft to a robbery (and by analogy, to a carjacking). [Citation.]" (See p. 14, ante.)
For these reasons, we find there is not a reasonable likelihood that the jury misused the trial courts response to question No. 3 to conclude that since the death of the victim occurred during one continuous transaction that began with vehicle theft, a carjacking took place.
B. Withdrawing instruction on main defense theory of involuntary manslaughter
In his opening brief, defendant contends that "[e]ven if jurors harbored doubt whether this was a carjacking or [whether] [defendant] acted with implied malice (second degree murder), they were not about to let [defendant] off on a homicide based on Vehicle Code offenses that sound like slaps on the wrist, not homicide offenses. Thus, defense counsel [at trial] requested instruction on involuntary manslaughter as a lesser offense of murder[.] . . . The [trial] court agreed to give [this] lesser charge [and] . . . the prosecution repeatedly indicated it had no objection[.]" (Original italics.)
The involuntary manslaughter offense that defendant principally sought is defined by Penal Code section 192, subdivision (b), as "the unlawful killing of a human being without malice . . . in the commission of an unlawful act, not amounting to felony[.]"
Hereafter, undesignated section references are to the Penal Code.
The trial courts withdrawal of the involuntary manslaughter instruction arose in a curious way. After the prosecutor finished her initial closing argument, the trial court, outside the jurys presence, noticed for the first time that section 192, subdivision (b)—defining the offense of involuntary manslaughter—states that "[t]his subdivision shall not apply to acts committed in the driving of a vehicle." Instead, section 192, subdivision (c), defines vehicular manslaughter, and that offense includes an unlawful killing without malice while driving a vehicle in the commission of an unlawful act not amounting to a felony.
In considering what to do in light of the vehicular exclusion for involuntary manslaughter, the trial court correctly alluded to state Supreme Court authority holding that gross vehicular manslaughter (i.e., vehicular manslaughter while intoxicated) is not a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 987-991 & fn. 3; see § 191.5.) Defense counsel did not request instruction on vehicular manslaughter, but moved for mistrial. Defense counsel explained that the court and both counsel had made the same mistake and agreed to involuntary manslaughter, largely because the Supreme Court had excluded vehicular homicide as a lesser offense to murder; and that he (defense counsel) had called defendant (who had prior convictions and had just been paroled) to testify based on the involuntary manslaughter instruction. Counsel lamented that this state of affairs effectively condemned defendant to a life sentence.
The trial court denied defendants motion for mistrial, finding no prejudice because the jury was not "aware of any possibility of a lesser for involuntary manslaughter."
Defendant contends that, against this backdrop, simply withdrawing any lesser homicide offense instruction—"making this a murder or nothing case"—was error. Instead of withdrawing the lesser offense instruction of involuntary manslaughter in the middle of arguments, the correct remedy, defendant maintains, was either to grant a mistrial or to substitute the closely related offense of vehicular manslaughter as a requested defense theory or as a lesser related offense to which the prosecution had no objection. (See People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19.) To the extent that defense counsel at trial failed to note the vehicular exclusion to involuntary manslaughter, or failed to secure instruction on vehicular manslaughter, defendant claims counsel rendered ineffective assistance.
"Denial of a motion for a mistrial is reviewed for abuse of discretion and should be granted `only when "`a partys chances of receiving a fair trial have been irreparably damaged."" (People v. Panah (2005) 35 Cal.4th 395, 444.) To establish ineffective assistance of counsel, defendant must show that counsel failed to act as a reasonably competent attorney, and that prejudice resulted (i.e., there is a reasonable probability a more favorable outcome for defendant would have occurred in the absence of counsels failings). (People v. Gates (1987) 43 Cal.3d 1168, 1183 (Gates); People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
In reviewing both the denial of the mistrial motion and whether defense counsel acted ineffectively, the common criterion here is whether defendant was prejudiced by the lack of a vehicular manslaughter instruction. As we shall explain, we do not find that the lack of instruction on vehicular manslaughter prejudiced defendant because there is not a reasonable probability that defendant would have fared any better had such an instruction been given.
The trial court was correct that the offense of involuntary manslaughter does "not apply to acts committed in the driving of a vehicle." (§ 192, subd. (b).) That left only vehicular manslaughter as the possible lesser offense of manslaughter. As pertinent here, vehicular manslaughter is an unlawful killing without malice aforethought (with or without gross negligence) (1) while "driving a vehicle in the commission of an unlawful act, not amounting to felony," or (2) while "driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner." (§ 192, subd. (c)(1), (2), see also § 191.5.)
Only alternative (1) (nonfelonious unlawful act vehicular manslaughter) is really possible here. This is because the evidence was insufficient that defendant was "driving [the SUV] in the commission of a lawful act."
Even defendant concedes he was engaged in joyriding/auto theft (Veh. Code, § 10851) at the time of Jimenezs death. Such an offense is alternatively a felony or a misdemeanor (i.e., a "wobbler"). (Veh. Code, § 10851, subd. (a).) A wobbler, though, is considered a felony "for all purposes" until it is validly reduced to a misdemeanor at the time of judgment. (People v. Morse (1992) 2 Cal.App.4th 620, 647, italics in original; People v. Samarjian (1966) 240 Cal.App.2d 13, 23.) Consequently, joyriding/auto theft could not serve as a nonfelony for purposes of instructing on nonfelonious unlawful-act vehicular manslaughter. And, of course, the jury was instructed on carjacking, and on joyriding/auto theft (Veh. Code, § 10851) as a lesser offense thereto, but found defendant guilty of carjacking.
In fact, here, the only nonfelonies that could serve as unlawful acts for nonfelonious unlawful-act vehicular manslaughter were misdemeanor police evasion, misdemeanor driving under the influence, and misdemeanor driving with at least .08 percent blood-alcohol level. (Veh. Code, §§ 2800.1, 23152, subd. (a), 23152, subd. (b), respectively). The jury was instructed on all three of these misdemeanors as lesser offenses, yet convicted defendant of the maximum possible felony offenses corresponding to all three.
Finally, in terms of prejudice, defendant himself perceptively notes in his opening brief that the jury was "not about to let [him] off on a homicide based on Vehicle Code offenses that sound[ed] like slaps on the wrist, not homicide offenses."
We conclude defendant was not prejudiced by the lack of a vehicular manslaughter instruction. Consequently, the trial court did not err in denying defendants motion for mistrial and defense counsel was not ineffective.
In a related argument, defendant claims that withdrawing the involuntary manslaughter instruction in the midst of jury arguments violated his notice rights under section 1093.5 as well as under due process. Section 1093.5 requires the trial court on counsels request to advise counsel, before the commencement of argument, of all instructions it plans to give; this rule allows parties to intelligently argue the case to the jury. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 341.)
Before defense counsel presented his argument to the jury here, the trial court notified counsel, outside the jurys presence, that the involuntary manslaughter instruction had to be withdrawn.
More importantly, defendant was not deprived of a fair trial by the withdrawal of the involuntary manslaughter instruction. As the trial court noted, the jury was not aware of this offense as a possible verdict. The present case, moreover, is unlike People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, upon which defendant relies to establish unfairness and a violation of section 1093.5. In Sanchez, the trial court corrected an instruction in the midst of defense counsels closing argument to the jury; this required defense counsel to change "the entire thrust of his argument" and destroyed his credibility before the jury. (Id. at p. Supp. 7, see id. at p. Supp. 5.) Here, the instruction was withdrawn outside the jurys presence, and the jury was unaware of the possibility of involuntary manslaughter as a lesser offense. The trial court offered defense counsel additional time to prepare his argument, which counsel accepted.
Defendant notes again, however, that he testified in reliance on the involuntary manslaughter instruction being given. This placed his fresh parole and his prior convictions for grand theft and second degree burglary before the jury, with nothing to be gained for the defense. It is unlikely, though, that the jury held defendants criminal transgressions against him. These transgressions were minor compared to the special-circumstance first degree murder charge for which he was on trial. Moreover, the jury could have used defendants testimony to reach a compromise verdict of second degree murder.
C. Providing nonunanimity instruction on two murder theories
Defendants final instructional argument faults the trial court for giving the last sentence of the following CALCRIM instruction on alternative theories of murder:
"The defendant has been prosecuted for murder under two theories: (1) malice aforethought, and (2) felony murder. [¶] Each theory of murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory." (CALCRIM No. 548.)
Defendant argues that this last sentence was misleading because the jurors did have to agree on the same theory to determine the degree of murder here. This is because only one theory supported first degree murder (felony murder, carjacking) and only one theory supported second degree murder (malice aforethought).
Considering the instructions as a whole, as the law requires and as the jury was directed, there is not a "`reasonable likelihood" that the challenged instruction would have misled the jurors. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277; CALCRIM No. 200.) The jury was also instructed: "If you all agree the People have proved the defendant committed murder, you must also decide what degree of murder the People have proved. You must all agree on the degree of murder he committed"; and "Your verdict on each count must be unanimous. This means that, to return a verdict, all of you must agree to it." (CALCRIM Nos. 641, 3550.) Most importantly, the verdict form for murder included the following directive, to be signed by the foreperson:
"(FOREPERSON TO SIGN ONLY THE DEGREE UPON WHICH ALL TWELVE JURORS AGREE.)
"We further fix the degree thereof to be MURDER in the First Degree. _____________ FOREPERSON
"We further fix the degree thereof to be MURDER in the Second Degree. _____________ FOREPERSON"
The foreperson signed only the first degree statement.
3. Prosecutorial Misconduct
Defendant claims the prosecutor engaged in misconduct in cross-examining him as follows:
Prosecutor: "The only thing that you dont remember of that night is the man two or three inches away from you, hanging on the side of [the] car?"
Defendant: "I dont remember the man hanging on the side of the car."
Prosecutor: "And this wouldnt be a lie, would it, Mr. Zanini?"
Defendant: "No, maam. And it would help me freshen all that memory you just said right there and I told you is because I got the police report and I read it, read it over and over again. So if it refreshes my memory."
Prosecutor: "And you talked over with your counsel about the way to get out of a carjacking is to say I didnt see the guy outside the window; right?"
Defense Counsel: "Objection."
The Court: "Sustained."
Defendant: "No."
Defendant claims this exchange was nothing short of an unsupportable accusation that defense counsel coached defendant and even knowingly suborned perjury.
Under the defense-favorable California standard of misconduct, a prosecutor commits misconduct if he or she uses deceptive or reprehensible methods to attempt to persuade the jury. (People v. Ayala (2000) 23 Cal.4th 225, 284.) The prosecutors challenged conduct here crossed this line.
Nevertheless, a claim of prosecutorial misconduct can be considered on appeal only if a timely objection and a request for a curative judicial admonition has been made. (People v. Frye (1998) 18 Cal.4th 894, 969-970.) Defense counsel here did not request a curative judicial admonition. Anticipating this roadblock, defendant contends his counsel acted ineffectively in failing to make this request.
As we explained previously, to establish ineffective assistance of counsel, defendant must show that he was prejudiced: i.e., a reasonable probability that a more favorable outcome for him would have occurred in the absence of counsels failings. (Gates, supra, 43 Cal.3d at p. 1183.)
We do not see prejudice here. Defendants assertions that he did not remember or did not see the man hanging on the side of the car were more than enough on their own to raise eyebrows; they did not need the prosecutors unsupported accusation. Overwhelming evidence showed that Jimenez was hanging on for dear life just outside the drivers side window and just inches from defendant, and all of this occurred over a comparatively lengthy journey. Furthermore, the claim of misconduct here involves merely a single question from the prosecutor. The jury was instructed that an attorneys "questions are not evidence. Only the witnesses answers are evidence. . . . Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [¶] During the trial, the attorneys may have objected to questions . . . . If I [trial judge] sustained an objection, you must ignore the question." And finally—for what its worth, if anything, in light of these instructions—defendant answered the accusatory question "no."
4. Cumulative Effect
Defendant contends that the cumulative effect of all the errors alleged previously deprived him of a fair trial. We disagree.
We have found three areas of concern: the trial courts response to the jurys question about car theft becoming a carjacking if the victim tries to regain control; the handling of the manslaughter instruction; and the last sentence in CALCRIM No. 548 about unanimity on the alternative degrees of murder. Nevertheless, for the reasons explained above, these three concerns did not prejudice defendant cumulatively. In short, this is because (1) the record shows the jury understood the force element distinguishing car theft from carjacking; (2) the jury would not have convicted defendant of nonfelonious unlawful-act vehicular manslaughter (the only potential manslaughter offense available) given that offenses relatively innocuous nature and the jurys rejection of the instructed-upon misdemeanor crimes on which the offense would have been based; and (3) the last sentence in CALCRIM No. 548 was overwhelmed by correct instructions, most notably by the murder verdict form, which emphasized that juror unanimity was required as to the degree of murder.
5. Felony-Murder Special Circumstance Distinguished from Felony Murder
Defendant contends that Californias offense of special circumstance felony-murder (LWOP sentence) is unconstitutional under the Eighth Amendment to the United States Constitution (cruel and unusual punishment), and correspondingly under the due process clause, because the offense fails to rationally narrow the class of persons subject to it in contrast to those subject to simple first degree felony murder (25 years to life). We disagree.
Defendant concedes that our state Supreme Court has rejected similar contentions. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1195.) Moreover, the Eighth Amendments "narrowing requirement" applies only to death sentences. (Harmelin v. Michigan (1991) 501 U.S. 957, 995-996 .)
6. Section 654
Defendant claims the trial court erroneously imposed concurrent sentences on his convictions for hit and run causing injury or death (count 4) and for driving under the influence causing injury (count 5). We disagree.
Section 654 proscribes multiple punishment for multiple offenses based on the same act and, similarly, for multiple incidental offenses committed with one intent and objective during an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) A trial courts implicit factual findings regarding a defendants intent and objective will be upheld on appeal if they are supported by substantial evidence. (Osband, supra, 13 Cal.4th at p. 730.)
Defendant notes that the trial court, under section 654, stayed the sentence for his conviction for police evasion causing death (count 3), since this was part of an indivisible course of conduct for which he had already been punished pursuant to the murder conviction (count 1).
As the People note, though, the trial court reasonably could have found (1) that defendant subsequently formed a separate intent and objective to leave the scene of an accident that resulted in injury or death without rendering reasonable assistance as legally required (after Jimenez was thrown from the SUV) (count 4, hit and run with injury or death; Veh. Code, §§ 20001, 20003); and (2) that defendant had a separate intent and objective when he drove under the influence (count 5) than when he committed murder in the commission of a carjacking and when he evaded an officer.
We conclude the concurrent terms on counts 4 and 5 are proper.
7. DUI Fine
The trial court fined defendant $2,433 under Vehicle Code section 23554 for his Count 5 DUI conviction. However, the statutory amount of a Vehicle Code section 23554 fine ranges only from $390 to $1,000. (Veh. Code, § 23554.) Consequently, all parties agree that this matter should be remanded and the abstract of judgment should be amended to reflect the base amount of the fine and any penalty assessments separately. (See People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Although the trial court stated at sentencing that "[t]heres a $2,433 fine on count 5 and count 6 [driving with blood alcohol level of at least .08 percent causing injury]," it is clear this fine effectively applies only to count 5. Under section 654, the trial court stayed punishment for count 6 in light of count 5. Consequently, the trial courts minute order and abstract of judgment correctly specify that the Vehicle Code section 23554 fine of $2,433 is effective only as to count 5.
DISPOSITION
The matter is remanded for the trial court to amend the abstract of judgment to detail, as to count 5, the amount of the fine under Vehicle Code section 23554 and the amount of any penalty assessments. The trial court shall forward a certified copy of this amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:
MORRISON, J.
ROBIE, J.