P. v. Reyes
Filed 8/21/12 P. v. Reyes CA2/4
PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
GEORGE
MARIO REYES,
Defendant and Appellant.
B235382
(Los Angeles County
Super. Ct. No. MA048357)
APPEAL
from a judgment of the Superior Court of
County, Daviann L. Mitchell, Judge. Affirmed.
Landra
E. Rosenthal, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant George Mario Reyes
challenges his conviction for second
degree murder. He contends the trial
court improperly declined to instruct the jury regarding lesser included and
lesser related offenses to murder. We
reject these contentions and affirm.
RELEVANT
PROCEDURAL HISTORY
On
November 9, 2010, an
information was filed charging appellant with a single count of murder (Pen.
Code, § 187, subd. (a).)
of second degree murder. Appellant was
sentenced to a term of imprisonment of 15 years to life.
A. Prosecution
Evidence
In
September 2006, appellant pleaded guilty to driving under the influence. He was placed on probation until April 24, 2010. The trial court advised him: “If you continue to drive under the influence
of alcohol, drugs, or both[,] and someone is killed as a result, you can be
charged with murder.â€
Between
7:00 and 8:00 p.m. on February
19, 2010, appellant and Michelle Garcia began a visit with
Oscar and Mary Portillo in their home in Palmdale. During the evening, appellant drank
approximately six bottles of beer.
Garcia had no alcoholic drinks.
At or shortly after 2:00 a.m., appellant
and Garcia left the Portillos’ home in appellant’s car. According to the Portillos, Garcia drove the car
while appellant sat in the front passenger seat, and both wore seat belts.
Shortly
after 3:00 a.m. on February 20, 2010, Los
Angeles County deputy
sheriffs responded to a call regarding an accident and located appellant’s
overturned car in an open field near Avenue S in the Palmdale area. Deputy Sheriff Trevor King, the first officer
to see appellant, found him in the driver’s seat wearing the seat belt. The car contained no one else. After an ambulance took appellant away, the
deputy sheriffs found Garcia face down on the ground 30 to 40 yards behind the
car. She was determined to be dead.
Appellant’s
blood alcohol level, as determined by tests performed at 4:29 a.m. and 5:14 a.m., was .21 percent.
At approximately 8:00 p.m.,
California Highway Patrol officers interviewed appellant. He acknowledged that he had suffered a prior
conviction for driving under the influence, but denied that he was placed on
probation for the offense. He could not
recall what had occurred after he and Garcia left the Portillos’ home.
On
the basis of skid marks, investigating officers concluded that the car had been
travelling approximately 76 miles per hour when it veered across the road,
overturned on a raised median, and rolled over for approximately 200 feet. Only the driver’s seat belt showed signs that
it had restrained a body during the incident.
An autopsy established that Garcia had
with her having been ejected from the car.
B. Defense
Evidence
Edward
Acosta, an appointed defense investigator, testified that he interviewed Los
Angeles County Sheriff’s Department Sergeant Mark Wright, who had responded to
the accident call on February
20, 2010. According to
Acosta, Wright said that appellant was not wearing a seat belt when he saw him
inside the car.
DISCUSSION
Appellant contends the trial court erred in declining to instruct the
jury regarding involuntary manslaughter
as a lesser included offense of murder and vehicular manslaughter as a lesser
related offense of murder. As explained
below, we disagree.
A.
Generally,
the trial court is obligated to instruct sua
sponte on lesser included offenses that the evidence tends to prove, even
the parties object to the instruction on tactical grounds. (People
v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).) For purposes of
this rule, courts apply the so-called “‘accusatory pleading’†test, which
“looks to whether ‘“‘the charging allegations of the accusatory pleading
include language describing the [charged] offense in such a way that if
committed as specified [the candidate] lesser [included] offense is necessarily
committed.’â€â€™â€
name="_ftnref3" title="">[3] (People
v. Montoya (2004) 33 Cal.4th 1031, 1035, quoting People v. Lopez (1998) 19 Cal.4th 282, 288-289.) The court must instruct on any lesser
included offense for which there is substantial evidence to support a
conviction (Breverman, supra,
19 Cal.4th at p. 162), but not if the pertinent evidence is “minimal and
insubstantial†(People v. Springfield
(1993) 13 Cal.App.4th 1674, 1680).
The rule obliging the trial court to
instruct on lesser included offenses flows from the trial court’s duty to
provide instructions adequate for the case.
(People v. Birks (1998) 19
Cal.4th 108, 118 (Birks).) “[I]n criminal cases, even in the absence of
a request, the trial court must instruct on the general principles of law
relevant to the issues raised by the evidence.
[Citations.] The general
principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.†(People
v. St. Martin (1970) 1 Cal.3d 524, 531.)
As our Supreme Court has explained, the
instructional rule regarding lesser included offenses implements this general
duty in a manner that benefits both defense and prosecution. (Birks,
supra, 19 Cal.4th at p. 119.) The rule preserves the prosecutor’s
discretion over the offenses to be charged, ensures that the defendant has
adequate notice of the offenses alleged and prevents either party from
“gambling on an inaccurate all-or-nothing verdict when the pleadings and
evidence suggest a middle ground.†(
Court has stated: “Our courts, we have
stressed, ‘“are not gambling halls but forums for the discovery of the truth.â€â€™ [Citations.]â€
(Id. at p. 127.)
In
contrast, the trial court is not required to instruct on lesser related
offenses, either sua sponte or on the defendant’s request, even if there is
substantial evidence to support a conviction for the offense. (Birks,
supra, 19 Cal.4th at p. 137;
580, 583; People v. Valentine (2006)
143 Cal.App.4th 1383, 1387.) Although an
instruction on a lesser related offense is proper if both defense and
prosecution agree to it, the court may not instruct on a lesser related
offense over the prosecution’s objection.
(Birks, supra, at p. 136, fn. 19; People v. Lam, supra,
at p. 583; People v. Valentine,
for improper “‘gambling hall’ strategies†by ensuring that the defendant is not
denied notice of the lesser related offense and that the prosecution has an
adequate opportunity to prove it. (See
Furthermore, the requirement respects the prosecution’s authority under
the doctrine of the separation of powers to select the offenses to be charged
against a defendant. (
California Constitution should not be construed to grant criminal defendants an
affirmative right to insist on jury consideration of nonincluded offenses
without the prosecutor’s consent.†(
B.
Appellant
contends the trial court erred in refusing to instruct the jury on involuntary
manslaughter as a lesser included offense of murder. Subdivision (b) of section 192 defines
involuntary manslaughter as “the unlawful killing of a human being without
malice†that occurs “in 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 and circumspection.†Because involuntary manslaughter is
ordinarily a lesser included offense of murder (People v. Sanchez (2001) 24 Cal.4th 983, 991, overruled on another point
in People v. Reed,
maintains that the court
was obliged to instruct on involuntary manslaughter. He points in particular to the evidence at
trial that he caused Garcia’s death while performing a lawful act -- driving a
car -- in an unlawful or reckless manner.
As explained below, he is mistaken.
Appellant’s
argument incorrectly disregards the express restriction that the Legislature
has imposed on involuntary manslaughter.
Subdivision (b) of section 192 states:
“This subdivision shall not apply to acts committed in the driving of a
vehicle.†As our Supreme Court has
explained, under the separation of powers established in the California
Constitution, “‘the power to define crimes and fix penalties is vested
exclusively in the legislative branch.’â€
(People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 516, quoting Keeler
v. Superior Court (1970) 2 Cal.3d 619, 631 (Keeler); accord, People v.
Farley (2009) 46 Cal.4th 1053, 1119.)
Thus, “[t]he courts may not expand the Legislature’s definition of a
crime . . . . â€
(People v. Farley, at p. 1119,
italics omitted.)
An instructive
application of this principle is found in Keeler. There, the Supreme Court addressed the
then-effective version of section 187, which defined murder as the “unlawful
and malicious killing of a ‘human being.’â€
(Keeler, supra, 2 Cal.3d at p. 619.)
The court held that the doctrine of the separation of powers barred it
from construing the term “human being†to include an unborn but viable fetus,
reasoning that the term, as used by the Legislature in enacting the statute,
was clearly restricted to “one who has been born alive.†(Id.
at p. 632.) The court stated: “Whether to thus extend liability for murder
in California is a determination solely within the province of the
Legislature.†(Id. at pp. 632-633.)
Here,
the Legislature has defined involuntary manslaughter in a manner that expressly
excludes “acts committed in the driving of a vehicle†(§ 192, subd. (b)). For this reason, the trial court was obliged
to instruct on the offense only if there was substantial evidence that
appellant committed it while not
driving the car. As there was none, the
court properly declined to instruct the jury on involuntary manslaughter. (People
v. Ferguson (2011) 194 Cal.App.4th 1070, 1082-1085.)
Appellant
asserts that the court’s failure to instruct on involuntary manslaughter
contravened his rights to present a defense under the United States
Constitution and California law. We disagree.
Our Supreme Court has repeatedly determined that the federal
Constitution establishes no right in noncapital cases to instructions on lesser
included offenses, and only a limited right to instructions in capital
cases. (E.g., Breverman, supra, 19
Cal.4th at p. 169 [“In light of the United States Supreme Court’s careful
disclaimers, and its tendency to interpret related federal rules
. . . in a narrow way, we decline to do what the high court has
expressly not done -- to hold that such an instructional rule is required in
noncapital cases by the federal Constitution.â€]; People v. Rundle (2006) 43 Cal.4th 76, 148, disapproved on another
ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22 [“[E]xcept for the limited situation in a capital case
in which the state has created an artificial barrier to the jury’s
consideration of an otherwise available noncapital verdict, there is no federal
constitutional right to instruction on lesser necessarily included
offenses.â€].)
We
find guidance on appellant’s contention in People
v. Taylor (2010) 48 Cal.4th 574, 624-625, a death penalty case. There, our Supreme Court held that an
instruction on a lesser included offense was properly denied because there was
insufficient evidence to support a conviction for the offense. (Id.
at p. 624.) In so concluding, the court
rejected the defendant’s contention that the trial court’s refusal to give the
instruction violated his federal constitutional rights to present a defense,
reasoning that no federal decision “require[d] instructions on a lesser
included offense that substantial evidence does not support.†(Id.
at p. 625.) In view of
not contravene appellant’s federal constitutional rights in declining to
instruct on involuntary manslaughter.
Appellant’s
contention also fails under California law.
Generally, the trial court’s duty to instruct on a defense theory, like
its duty to instruct on lesser included offenses, follows from the court’s
general obligation to provide instructions adequate for the case. (People
v. Stewart (1976) 16 Cal.3d 133, 140.)
For this reason, the trial court may decline to give an instruction
related to a defense when there is no substantial evidence to support the
instruction. (People v. Salas (2006) 37 Cal.4th 967, 982-983;
169 Cal.App.4th 41, 49.) As
explained above, that is the case here.
Because the Legislature has restricted involuntary manslaughter so that
it cannot be committed by a defendant who causes a death while driving, the
trial court had no duty to instruct on the offense as a defense theory. (See People
v. Saille (1991) 54 Cal.3d 1103, 1120 [courts are not required to instruct
on the defense of diminished capacity after its abolition].) In sum, the trial court was not obliged to
instruct the jury on involuntary manslaughter as a lesser included offense of
murder.
C.
Lesser Related Offense
Appellant
contends the trial court erred in failing to instruct the jury on vehicular
manslaughter as a lesser related offense to attempted murder. He does not dispute that vehicular
manslaughter was not a lesser included offence of murder under the accusatory
pleading test, as the information lacked any allegations regarding the driving
of a vehicle.
name="_ftnref4" title="">[4] (See People
v. Sanchez, supra,
24 Cal.4th at pp. 991-992.) Nor
does he dispute that under Birks,
instruct on a lesser related offense when, as here, the prosecution has
objected to the instruction. Instead, he
maintains that Birks was wrongly
decided, arguing that the refusal to instruct on vehicular manslaughter
contravened his federal constitutional rights to present a defense.
This argument
fails, as our Supreme Court has reaffirmed Birks
in response to contentions of this type, including contentions framed in terms
of a right to present a defense. (People v. Rundle, supra,
43 Cal.4th at p. 148
[“[T]here is no federal constitutional right of a defendant to compel the
giving of lesser-related-offense instructions[,]†including a due process right
“to present the ‘theory of the defense case.’â€]; accord, People
v. Foster (2010) 50 Cal.4th 1301, 1343-1344.) We are bound by these determinations. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s contention also fails to
the extent it relies on a defendant’s right to defense instructions under
California law. As explained above (see
pt. B., ante), the trial court’s obligation
to give defense instructions flows from its general instructional duty. In Birks,
our Supreme Court examined the application of this general duty to lesser
related offenses. (Birks, supra, 19 Cal.4th
at pp. 118-132.) Because the obligation
to give defense instructions stems from the general duty, it provides no
independent basis to depart from Birks.
We recognize that the jury confronted
an “all or nothing†decision regarding appellant’s guilt, even though the aim
of the instructional rule regarding lesser included offenses is to inhibit the
presentation of such decisions to the jury “when the pleadings and evidence
suggest a middle ground†(Birks, supra,
19 Cal.4th at pp. 119, 127). However, the decision presented to the jury
resulted directly from the Legislature’s restriction on involuntary manslaughter and the
prosecution’s selection of the offense charged against appellant. Both the legislative restriction and the
prosecutorial decision constituted legitimate exercises of authority that
we are obliged to respect under the
separation of powers doctrine. (
at p. 136.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
name="_ftn1" title="">[1] All further statutory citations are to the Penal Code.
name="_ftn2" title="">[2] An audio recording of the interview was played for the
jury.
