Filed 6/29/11 P. v. Moulayi CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
Plaintiff and Respondent, G042712
v. (Super. Ct. No. 08ZF0039)
MILAD MOULAYI, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Carla Singer, Judge. Affirmed. Request for judicial notice. Denied.
Law Offices of William J. Kopeny and William J. Kopeny for Defendant
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R.
Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,
Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and
* * *
In the early morning of August 28, 2008, while under the influence of
alcohol and without a driver‟s license, then 17-year-old defendant Milad Moulayi was
driving his car at a speed in excess of 100 miles per hour when he lost control of the car.
The car crossed over the center median and collided into objects, including signposts and
a light signal pole before splitting in half. The back portion of the car, which contained
the front seat and backseat, came to rest near a brick wall. Defendant‟s passenger,
16-year-old Mackenzie Frazee, did not survive. The jury found defendant guilty of
second degree murder and driving a motor vehicle without a license; the trial court
sentenced defendant to 15 years to life in state prison.
We affirm. We reject each of defendant‟s contentions on appeal.
Defendant‟s constitutional rights were not violated when the trial court denied his request
for a jury instruction on the lesser related offense of vehicular manslaughter pursuant to
People v. Birks (1998) 19 Cal.4th 108, 136 (Birks). Defendant was not prejudiced by the
admission of his prior conviction for driving without a license and the lecture he received
from a juvenile court referee for engaging in such conduct. Defendant did not object at
trial to the admission of evidence of his high school‟s drinking and driving program
entitled “Every 15 Minutes,” and thus has forfeited the argument that evidence was
erroneously admitted. Even if his argument had not been forfeited, defendant was not
prejudiced by the admission of such evidence. Defendant has failed to make a showing
of prosecutorial misconduct and defendant‟s sentence for second degree murder does not
constitute cruel or unusual punishment within the meaning of the California Constitution.
Around 11:00 p.m. on August 27, 2008, defendant drove to his friend J.G.‟s
house to pick him up and drive him back to defendant‟s house to hang out. Defendant
and J.G. attended the same high school. When defendant arrived at J.G.‟s house, J.G.
saw 16-year-old Mackenzie Frazee sitting in the front passenger seat of defendant‟s car.
After J.G. got into the car, he noticed defendant smelled like alcohol and was acting
“loud and sloppy.”
J.G. knew that in the past, defendant had driven under the influence of
alcohol. About a month earlier, J.G. had spoken to defendant about the dangers of
drinking and driving. He warned defendant his behavior was dangerous and “should be
stopped immediately.” He also told defendant he “probably was going to kill him[self] or
someone else because he was known to drive drunk.” It appeared to J.G. that defendant
“brushed the subject off” and did not seem to really think about what J.G. was telling
After the group arrived at defendant‟s house, J.G. saw a bottle of rum and
noticed “a little bit [of rum] out of it.” Defendant told J.G. that he had stolen the bottle of
rum from a store earlier that day. Defendant stayed at his house for about 15 minutes and
then left to pick up E.B., J.D., and P.D. During those 15 minutes, J.G. saw defendant
drink “a lot of alcohol . . . [¶] . . . quick.”
Defendant drove to J.D.‟s house and picked up J.D., E.B., and P.D. During
the drive back to his house, defendant started speeding and causing the car to swerve.
Defendant was talking about not having a driver‟s license. J.D. and E.B. asked defendant
a couple of times to pull over and let someone else drive. Defendant refused and said he
was not going to pull over because it was his car. Defendant admitted he had been
drinking when J.D. asked him to pull over; however, he said he did not care and “it was
P.D., J.D. and E.B. each testified that they were scared. They reached
defendant‟s house and discussed how defendant was “already drunk.” They agreed not to
get into the car with him again and instead planned to walk home. They found J.G. and
Mackenzie inside the house. Defendant started drinking from a bottle of rum; he used a
shot glass and also drank directly from the bottle. He tried to pressure the others to drink
and made fun of them for not drinking. J.G. was the only one who drank some alcohol.
Defendant was “hyper” and slurred his words. He acted “rude and . . .
sexually aggressive” toward J.D. and E.B., making them feel uncomfortable.
When J.G. decided to walk home, defendant offered to drive him. J.G. told
defendant he was “not getting in that car.” J.G. several times offered to walk Mackenzie
home, but each time she said “no.” Mackenzie said that defendant would take her home
later in the morning or that J.D. would get someone to take her home. J.G. left.
About an hour later, around 2:30 a.m., P.D., E.B., and J.D. decided to walk
home. Defendant offered to give them a ride because driving would be faster. They
rejected his offer, telling him they would not get in the car with him. They told him that
he was drunk and it was not safe for him to drive. Defendant tried to force the issue, but
they repeatedly told him they were not going in the car with him. J.D. told defendant:
“You are drunk. Don‟t drive. It won‟t turn out good.” Defendant said he would be okay.
J.D. asked Mackenzie to walk with them to J.D.‟s house and E.B. offered to drive her
home from there. Mackenzie did not accept their offers. She appeared “really kind of
nervous” and anxious to get home.
After P.D., E.B., and J.D. saw Mackenzie get into the car with defendant,
they walked down the driveway and hid in some bushes because they did not want to be
hit by defendant‟s car when he drove by. They observed defendant driving his car away
Defendant was driving approximately 110 miles per hour when he
apparently lost control of his car. The car travelled across the center median, struck
several signs, a utility box, and a water structure before striking a traffic signal pole. The
car‟s collision with the traffic signal pole caused the car to be cut in half. The back
portion of the car, which included the front seat and backseat, came to rest near a brick
wall. Mackenzie died from traumatic shock caused by blunt force trauma. Her external
and internal injuries were extensive.
Officer Mark Hocevar of the Tustin Police Department responded to the
scene where he found defendant lying on his back in front of the car. Defendant yelled,
“I did this, I did this, did I kill her?” The passenger side door was missing. Hocevar
could see a person between the vehicle seat and the wall. Defendant told Officer Allen
Duarte of the California Highway Patrol that he had had “10 shots” and hit the curb while
driving. Defendant displayed objective signs of intoxication; he had the odor of an
alcoholic beverage on his breath and had red, watery eyes. He was placed under arrest
and transported by ambulance to a hospital.
When asked if he was aware of the Every 15 Minutes program offered at
his high school, defendant responded, “I guess I am another statistic.” He also stated he
had not participated in the Every 15 Minutes program. Hocevar asked defendant whether
he should have been driving that night. Defendant responded, “I had one too many and I
don‟t have a license.” After Hocevar asked defendant if he “drinks too much
sometimes,” defendant stated: “Oh, yeah, a lot of times.”
Defendant told Duarte that he had been in court the day before. During the
afternoon of August 27, 2008, defendant and his mother had appeared in court to answer
for defendant‟s failure to complete courses required of him since he had been caught
driving without a license. The presiding juvenile court referee lectured defendant on how
driving “carries with it an intense amount of responsibility.” The referee addressed the
seriousness of defendant driving without having learned how to drive responsibly—
knowledge required before he would be issued a license. (The referee prohibited
defendant from obtaining a driver‟s license for 180 days.)
A sample of defendant‟s blood was taken at 4:30 a.m. on August 28.
Testing of the blood sample showed defendant had a blood alcohol concentration of .113.
The prosecution and defendant‟s counsel stipulated that “[i]t is unlawful for a person
under the age of 21 years who has a 0.05 percent or more by weight of alcohol in his or
her blood to drive a vehicle.” The autopsy conducted on Mackenzie‟s body showed no
alcohol was present in her blood.
On October 22, 2008, the Orange County Grand Jury returned an
indictment accusing defendant of committing the felony offense of second degree
murder, in violation of Penal Code section 187, subdivision (a) (count 1), and the
misdemeanor offense of driving a motor vehicle without a valid license, in violation of
Vehicle Code section 12500, subdivision (a) (count 2). The jury found defendant guilty
on both counts as charged.
The court imposed a 15-year-to-life prison sentence on count 1; the
sentence on count 2 was stayed pursuant to Penal Code section 654. Defendant appealed.
REQUEST FOR JUDICIAL NOTICE
Defendant filed a request for judicial notice asking that this court take
judicial notice of 15 press releases purportedly published by the Orange County District
Attorney‟s Office, and two newspaper articles to show “defendants who commit DUI
[(driving under the influence)] offenses resulting in more victims being killed or killed
and injured, which defendants have a f[a]r worse driving record (i.e., have prior DUI
convictions, or other more serious prior driving convictions), none of the defendants in
cases to be judicially noticed were prosecuted for Watson murder, nor sentenced to life,
whereas the juvenile defendant in this case, with no prior DUI convictions, no prior
alcohol convictions, and only a driving without a license infraction on his record, was
prosecuted for murder in the DUI single car accident that resulted in the death of a single
Evidence Code section 459, subdivision (a) provides that this court “may
take judicial notice of any matter specified in Section 452.” Evidence Code section 452
provides: “Judicial notice may be taken of the following matters to the extent that they
are not embraced within Section 451: [¶] (a) The decisional, constitutional, and statutory
law of any state of the United States and the resolutions and private acts of the Congress
of the United States and of the Legislature of this state. [¶] (b) Regulations and
legislative enactments issued by or under the authority of the United States or any public
entity in the United States. [¶] (c) Official acts of the legislative, executive, and judicial
departments of the United States and of any state of the United States. [¶] (d) Records of
(1) any court of this state or (2) any court of record of the United States or of any state of
the United States. [¶] (e) Rules of court of (1) any court of this state or (2) any court of
record of the United States or of any state of the United States. [¶] (f) The law of an
organization of nations and of foreign nations and public entities in foreign nations. [¶]
(g) Facts and propositions that are of such common knowledge within the territorial
jurisdiction of the court that they cannot reasonably be the subject of dispute. [¶]
(h) Facts and propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably indisputable
None of the materials that are the subject of defendant‟s request for judicial
notice falls within any of the categories set forth in Evidence Code section 452; defendant
does not argue or present any analysis showing otherwise. We therefore deny
THE TRIAL COURT DID NOT ERR BY REFUSING TO INSTRUCT THE JURY ON
Defendant contends the trial court violated his constitutional rights by
denying his request for a jury instruction on the lesser related offense of vehicular
manslaughter. In the opening brief, defendant argues: “[Defendant] was charged with a
form of murder that included, as a matter of fact use of a vehicle to cause the unlawful
homicide. He and others charged with Watson second degree murder are denied the
right to have the jury instructed that manslaughter is a lesser included offense of murder,
that involuntary manslaughter is a lesser included offense of implied malice second
degree murder, and that gross vehicular manslaughter is a lesser related offense to
Watson murder, so that the jury will have the ability to evaluate whether or not implied
malice has been proven beyond a reasonable doubt with a full and accurate appreciation
of the full range of crimes shown by the evidence.”
In Birks, supra, 19 Cal.4th at page 136, the California Supreme Court
overruled People v. Geiger (1984) 35 Cal.3d 510, which held that a “defendant has a state
constitutional right to instructions on lesser offenses that are not necessarily included in
the stated charge” and that “instructions on lesser merely „related‟ offenses can be given
only upon the defendant’s request” (Birks, supra, at p. 112). The Supreme Court in Birks
held, inter alia, “the 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.” (Id. at p. 136, italics added; see People v. Rundle
(2008) 43 Cal.4th 76, 147 [“In Birks, however, we overruled the holding of Geiger that a
defendant‟s unilateral request for a related-offense instruction must be honored over the
prosecution‟s objection”]; People v. Nelson (2011) 51 Cal.4th 198, 215 [same].) In
People v. Nelson, supra, 51 Cal.4th at page 215, the Supreme Court stated, “[w]e have
previously rejected an argument that the Birks rule violates the federal Constitution.”
In People v. Sanchez (2001) 24 Cal.4th 983, 985, the California Supreme
Court held that the offense of gross vehicular manslaughter while intoxicated is not a
lesser included offense of murder. The Supreme Court explained: “Although it long has
been held that manslaughter is a lesser included offense of murder, this tradition has not
explicitly included offenses requiring proof of specific elements unique to vehicular
People v. Watson (1981) 30 Cal.3d 290.
manslaughter. Unlike manslaughter generally, vehicular manslaughter while intoxicated
requires proof of elements that are not necessary to a murder conviction. The use of a
vehicle while intoxicated is not merely a „circumstance,‟ but an element of proof when
the charge is gross vehicular manslaughter while intoxicated. Gross vehicular
manslaughter while intoxicated is not merely a degree of murder, nor is it a crime with a
lengthy pedigree as a lesser included offense within the crime of murder.” (Id. at p. 991.)
The court further stated, “[a]lthough we recognize that historically manslaughter in
general has been considered a necessarily included offense within murder, that long and
settled tradition has not extended to the more recently enacted forms of vehicular
manslaughter that require proof of additional elements.” (Id. at p. 992.)
As the California Supreme Court has held that vehicular manslaughter
(whether committed with gross negligence or without gross negligence) is not a lesser
included offense of second degree murder, defendant was not entitled to an instruction on
In the opening brief, defendant states, “[o]nly homicides committed with a
vehicle are treated differently. Only persons charged with gross vehicular manslaughter
while intoxicated, or with any other lesser form of vehicular manslaughter, are deprived
of the right to have the jury choose between murder and manslaughter based on whether
or not the jury is convinced that malice aforethought has been proved to the degree of
In the opening brief, defendant states: “Under the facts of this case, the jury
would have been well within the evidence to convict [defendant] of gross vehicular
manslaughter while intoxicated, or other forms of involuntary manslaughter involving a
vehicle.” (Italics added.) Penal Code section 192 defines manslaughter as “the unlawful
killing of a human being without malice” and subdivision (b) states that involuntary
manslaughter involves “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.” Section 192, subdivision (b) also expressly
provides: “This subdivision shall not apply to acts committed in the driving of a
vehicle.” The trial court cannot be obligated to give an instruction on an offense for
which there can be no conviction. (People v. Gurule (2002) 28 Cal.4th 557, 659.)
beyond a reasonable doubt.” Defendant argues, “this fact deprived him of equal
protection of the law, and of a fair trial because . . . in this situation, the jury is actually
put to the choice of either convicting the accused of a murder he (arguably) did not
commit, or of freeing him altogether.”
In People v. Rundle, supra, 43 Cal.4th at pages 147-148, the California
Supreme Court stated: “As we discussed in Birks, there is no federal constitutional right
of a defendant to compel the giving of lesser-related-offense instructions. [Citation.]
Further, except 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
Defendant has not offered any persuasive legal authority that the
constitutional rights to equal protection and a fair trial require that an exception to the
Birks rule be made in cases such as this one. Based on the California Supreme Court
authorities cited, ante, a criminal defendant charged with second degree murder is not
entitled to an instruction on vehicular manslaughter. We are bound by the decisions of
the California Supreme Court and we follow them. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) The trial court, therefore, did not err by denying
defendant‟s request for such an instruction.
THE TRIAL COURT DID NOT ERR BY ADMITTING EVIDENCE DEFENDANT HAD
BEEN CONVICTED OF DRIVING WITHOUT A LICENSE AND OF THE EXISTENCE
OF THE EVERY 15 MINUTES PROGRAM AT DEFENDANT‟S HIGH SCHOOL.
In the opening brief, defendant contends the trial court erroneously
admitted evidence: (1) defendant “had been convicted of driving without a license and
recently lectured by a judge and ordered not to drive without a license”; and
(2) defendant‟s high school participated in the Every 15 Minutes program because
defendant did not attend that program. We address each of defendant‟s contentions in
Evidence of Defendant’s Prior Conviction and the August 27, 2008 Hearing
In the opening brief, defendant argues, “[a]t trial, the jury heard that the
Juvenile Referee admonished [defendant] that driving without a license could be
dangerous because he did not know the rules of the road and one mistake could end
another person‟s life.” Defendant further argues: “Admitting this admonition was
unfairly prejudicial to [defendant] in two ways: (1) it informed the jury of a prior driving
offense, identical to Count 2—driving without a license; and (2) it constituted an
assumption by the Juvenile Judge that [defendant] did not know the rules of the road,
which was unsupported.”
We do not need to decide whether this evidence was improperly admitted
because even if it was, defendant was not prejudiced. The admission of the evidence did
not prejudice defendant as to his conviction in the instant case of driving without a
license because undisputed evidence otherwise showed defendant committed that offense.
As to defendant‟s argument the admission of such evidence constituted the
unsupported assumption by the referee that defendant did not know the rules of the road,
our response is: The evidence at trial established that defendant was aware of the dangers
of drinking and driving but chose to engage in such conduct anyway. It is true that
defendant‟s knowledge of rules of the road aside from laws prohibiting drinking and
driving (of which he was aware) is irrelevant and the suggestion by the referee that
defendant might not know all the rules of the road is also irrelevant. But, as we have
concluded, the admission of this evidence was not prejudicial.
Defendant argues the evidence showing that on August 27, a juvenile court
referee had ordered defendant not to drive “allowed the jury to infer that somehow
violating that court order added to the People‟s case that this was murder, rather than
something less serious.” Defendant‟s argument is speculative. The jury was instructed
on the elements of second degree murder and we must assume the jury followed the
given instructions in reaching its verdict as to that offense. (People v. Cunningham
(2001) 25 Cal.4th 926, 1014.)
Evidence of the Every 15 Minutes Program
Defendant argues the trial court erroneously admitted evidence that the
Every 15 Minutes program is staged periodically at defendant‟s high school, which the
prosecution offered to prove defendant‟s implied malice by showing his awareness of the
dangers of drinking and driving. Defendant did not object to the admission of this
evidence at trial and thus has forfeited this argument. (People v. Neely (2009) 176
Cal.App.4th 787, 794.)
Even if defendant‟s evidentiary argument is not forfeited, it is without merit
because defendant was not prejudiced by the admission of that evidence. (People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.) The prosecution presented evidence that at
defendant‟s high school, junior and senior high school students are taught about the
dangers of drinking and driving through the Every 15 Minutes program in which
participating students observe a staged crash scene of a drunk driving incident, visit the
morgue, and act out the consequences of drinking and driving. The jury was also told
that defendant never attended that program. The prosecution proved defendant‟s implied
malice by presenting evidence that defendant had driven drunk before, had been
admonished by J.G. to stop his dangerous conduct, and chose to ignore P.D.‟s, J.D.‟s, and
E.B.‟s warnings not to drive because he was drunk and “it [wa]s not safe for him to
drive” on the early morning of August 28, 2008. Even if evidence that defendant was
aware of the Every 15 Minutes program was improperly admitted to prove implied
malice, it was not prejudicial in light of the other evidence proving his implied malice in
this case. We find no error.
THE PROSECUTOR DID NOT ENGAGE IN PROSECUTORIAL MISCONDUCT.
Defendant contends the prosecutor engaged in “improper vouching
conduct” which “took the form of leading jurors to believe the prosecution expert was a
credible expert and the defense expert was not, and that he was retained to try to reach a
particular conclusion that would help the defense, regardless of the evidence.” For the
reasons we discuss post, we conclude the prosecutor did not engage in any prejudicial
Applicable Legal Principles and Standard of Review
“„The applicable federal and state standards regarding prosecutorial
misconduct are well established. “„A prosecutor‟s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct so “egregious that it infects
the trial with such unfairness as to make the conviction a denial of due process.”‟”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves “„“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the jury.”‟”‟
[Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.) “„“As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a timely
fashion—and on the same ground—the defendant [requested] an assignment of
misconduct and [also] requested that the jury be admonished to disregard the impropriety.
[Citation.]”‟” (People v. Ayala (2000) 23 Cal.4th 225, 284.)
“„[I]n cases where jurors are improperly exposed to certain factual matters,
the error is usually tested under the standard set out in People [v.] Watson (1956) 46
Cal.2d 818, 836.‟” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.)
Thus, reversal of a judgment of conviction based on prosecutorial misconduct is called
for only when, after reviewing the totality of the evidence, we can determine it is
reasonably probable that a result more favorable to the defendant would have occurred
absent the misconduct. (People v. Bell (1989) 49 Cal.3d 502, 534; People v. Watson
(1956) 46 Cal.2d 818, 836.) The Chapman v. California (1967) 386 U.S. 18 standard of
harmless error applies when the prosecutor‟s misconduct did not render the trial
fundamentally unfair. (People v. Bordelon, supra, 162 Cal.App.4th at p. 1323.)
The Record Does Not Show Prosecutorial Misconduct.
The prosecution and the defense each presented a traffic accident
reconstruction analyst at trial. The prosecution‟s expert witness testified regarding his
reconstruction of how the collision occurred and concluded defendant‟s precollision
speed was approximately 110 miles per hour. Defendant‟s expert witness testified that
defendant‟s precollision speed was roughly 85 to 95 miles per hour. He admitted,
however, that a precollision speed of over 100 miles per hour was reasonably possible.
After the defense expert witness completed his testimony, the trial judge,
the prosecutor, and defense counsel retired to the judge‟s chambers for a sidebar. When
the prosecutor returned to the courtroom, the prosecution‟s expert witness informed her
that after the defense expert witness left the stand, in the presence of the jury, he walked
over to the prosecution‟s witness to shake hands and appeared to thank the jury.
The trial judge, the prosecutor, and defense counsel discussed the defense
expert witness‟s conduct. The prosecutor expressed concern the defense expert witness
shook hands with the prosecution‟s expert to show the jury that he was credible because
he was friendly with the prosecution‟s expert and part of the traffic accident
reconstruction analysts‟ community.
The prosecutor called the prosecution‟s expert as a rebuttal witness and
asked him questions regarding defendant‟s counsel; the following colloquy occurred:
“By [the prosecutor]: [¶] Q Sir, were you present yesterday when [the
defense expert witness] concluded his testimony?
“Q What happened after he concluded his testimony?
“A Once the court and the attorneys went—left the courtroom, [the defense
expert witness] stepped down from the stand, addressed the jury—
“[Defendant‟s counsel]: Objection, Your Honor.
“The witness: —thanking them.
“[Defendant‟s counsel]: That was not discussed in our sidebar.
“The Court: I‟m going to overrule. [¶] Go ahead and finish your answer,
“The witness: And from that point, walked slightly into the well in front of
the „petitioner‟ sign, reached over, and shook hands with me.
“By [the prosecutor]: [¶] Q And you‟d never met him before, right?
“A One-on-one, no.
“Q And during that 20-minute break, he never made any attempt to shake
“Q But he did so in front of this jury?
“Q And you said that you belong to numerous organizations and numerous
entities in regards to the field of collision reconstruction; is that correct?
“Q And you teach in your industry; is that correct?
“Q Do you train law enforcement officers in the field of traffic
“Q In any of the associations you belong to or the courses that you‟ve
either taken or taught, have you ever heard the methods used by [the defense expert
witness] in this analysis being applied in the way that [the defense expert witness] applied
them to reach his speed estimate?
“Q Is that scientifically accepted and validated in your community?
“A What he did is not.
“[The prosecutor]: Thank you. Nothing further.”
This examination by the prosecutor of the prosecution‟s expert witness did
not constitute improper vouching by the prosecutor in favor of that expert. Instead, the
prosecutor elicited testimony establishing the basis and credibility of the prosecutor‟s
expert‟s testimony. It was reasonable for the prosecutor to be concerned that the defense
expert witness‟s conduct of shaking the prosecution‟s expert witness‟s hand under the
circumstances was done to suggest some sort of relationship with the prosecution‟s expert
witness and to bolster the defense expert witness‟s credibility. The prosecutor did not
engage in misconduct by seeking testimony from the prosecution‟s expert that clarified
he had never before met the defense expert to dispel any inference of a preexisting
relationship between the two. It was left to the jury to decide whether the defense expert
witness‟s conduct affected his credibility in any way. We find no error.
DEFENDANT‟S TOTAL PRISON SENTENCE OF 15 YEARS TO LIFE DOES NOT CONSTITUTE
CRUEL OR UNUSUAL PUNISHMENT UNDER THE CALIFORNIA CONSTITUTION.
Defendant argues his total prison sentence of 15 years to life imposed for
his second degree murder conviction constituted cruel or unusual punishment within the
meaning of the California Constitution. For the reasons we discuss post, we disagree.
Although it is the Legislature‟s role to define crimes and proscribe penalties
for them, all statutory penalties are subject to the constitutional prohibition against cruel
or unusual punishments contained in article I, section 17 of the California Constitution.
(People v. Dillon (1983) 34 Cal.3d 441, 450 (Dillon).) “[A] punishment is impermissible
if it is grossly disproportionate to the offense as defined or as committed, and/or to the
individual culpability of the offender.” (Id. at p. 450; see In re Lynch (1972) 8 Cal.3d
410, 424 (Lynch) [punishment is cruel or unusual in violation of the California
Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity”].) Whether a
punishment is cruel or unusual in violation of the California Constitution under the legal
principles set forth in Lynch, supra, 8 Cal.3d at page 424, and Dillon, supra, 34 Cal.3d at
page 478, “presents a question of law subject to independent review; it is „not a
discretionary decision to which the appellate court must defer.‟ [Citation.]” (People v.
Felix (2002) 108 Cal.App.4th 994, 1000 (Felix).)
The reduction of a sentence based on the determination it is cruel or
unusual under the California Constitution “„is a solemn power to be exercised sparingly
only when, as a matter of law, the Constitution forbids what the sentencing law compels.‟
[Citation.]” (Felix, supra, 108 Cal.App.4th at p. 1000.) Furthermore, such a reduction
“„“must be viewed as representing an exception rather than a general rule”‟” and “„[i]n
such cases the punishment is reduced because the Constitution compels reduction, not
because a trial court in its discretion believes the punishment too severe.‟ [Citation.]”
In Lynch, supra, 8 Cal.3d at pages 425-426, the California Supreme Court
identified three “techniques” courts use to determine whether a punishment is
disproportionate to the crime, which involve (1) the consideration of the nature of the
offense and the offender “with particular regard to the degree of danger both present to
society”; (2) the comparison of the punishment imposed with the punishments for more
serious crimes in the same jurisdiction; and (3) the comparison of the punishment
imposed with punishments for the same crimes in different jurisdictions. (See Dillon,
supra, 34 Cal.3d at pp. 479-482.) A punishment need not be disproportionate under all
three techniques to violate the California Constitution. (Id. at p. 487, fn. 38.)
“In assessing the nature of the offense, a court should consider the
circumstance of the particular offense such as the defendant‟s motive, the way the crime
was committed, the extent of his involvement and the consequences of his acts.” (Felix,
supra, 108 Cal.App.4th at p. 1000.) We conclude the sentence imposed was not cruel or
unusual punishment in light of the nature of the charged offense. As to the nature of the
offense, the extremely serious nature of second degree murder accomplished by driving a
vehicle under the influence is most directly evidenced by the loss of life it caused.
The California Supreme Court has held that driving while under the
influence of alcohol is an act dangerous to human life. “The drunk driver cuts a wide
swath of death, pain, grief, and untold physical and emotional injury across the roads of
California and the nation. The monstrous proportions of the problem have often been
lamented in graphic terms by th[e California Supreme C]ourt and the United States
Supreme Court. [Citations.] As observed in Breithaupt [v.] Abram (1957) 352 U.S. 432
. . . , „[t]he increasing slaughter on our highways, most of which should be avoidable,
now reaches the astounding figures only heard of on the battlefield.‟ [Citation.] . . .
Given this setting, our observation that „[d]runken drivers are extremely dangerous
people‟ [citation] seems almost to understate the horrific risk posed by those who drink
and drive.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262.) We conclude nothing
in the nature of the offense or how it was committed allows reducing defendant‟s
sentence on the ground it would otherwise be cruel or unusual. (Felix, supra, 108
Cal.App.4th at p. 1001.)
Nor are we persuaded the 15-year-to-life prison sentence is grossly
disproportionate to defendant‟s individual culpability based on his personal
characteristics. “In analyzing the nature of the offender, a court should consider his „age,
prior criminality, personal characteristics, and state of mind.‟” (Felix, supra, 108
Cal.App.4th at p. 1000.) Here, the evidence at trial showed defendant had been
repeatedly warned about the danger posed to his own life and to the lives of others by his
conduct of driving under the influence. A month before the charged offenses occurred,
J.G. specifically admonished defendant to stop drinking and driving and warned him that
his conduct would likely result in his death or the death of someone else. On August 27,
2008, defendant, while appearing to be under the influence, drove J.G. to defendant‟s
house. Defendant drank “a lot of alcohol” in J.G.‟s presence before defendant drove to
J.D.‟s house and then drove J.D., E.B., and P.D. back to his house. Defendant refused
J.D.‟s and E.B.‟s pleas that he pull the car over after they were frightened by his speeding
J.G., P.D., J.D., and E.B. told defendant that they would not get back into
the car with him that night. J.D. told him he was drunk, he “was not safe to drive,” and
that it would not end well. After trying to pressure his friends to allow him to drive them
home, and notwithstanding his knowledge of the dangerousness of his conduct, defendant
got behind the steering wheel with Mackenzie in the passenger seat of his car and sped
away from his home. Minutes later, and after reaching speeds in excess of 100 miles per
hour, defendant lost control of the car, crossed the center median, and struck numerous
objects before striking a traffic light pole. Mackenzie did not survive. Under these
circumstances, it is fair to consider defendant‟s wrongful “conduct as premeditated, not
spontaneous.” (Felix, supra, 108 Cal.App.4th at p. 1001.)
We are not unmindful of the circumstances in the record showing this crime
was committed by a 17 year old with a very limited criminal record. But the record also
shows defendant had previously driven under the influence although he was first caught
engaging in such activity on August 28, 2008. In any event, neither defendant‟s age nor
limited criminal record is determinative in a cruel or unusual punishment analysis.
In People v. Gonzales (2001) 87 Cal.App.4th 1, 17, one of the defendants
argued his life sentence for murder was cruel or unusual in light of his age (14 years old)
and his limited criminal history involving an arrest for vandalism and his running away
from home. The appellate court rejected the defendant‟s argument, stating: “While [the
defendant]‟s youth and incidental criminal history are factors in his favor, they are
substantially outweighed by the seriousness of the crime and the circumstances
surrounding its commission . . . . The lack of a significant prior criminal record is not
determinative in a cruel and unusual punishment analysis. [Citation.] [The defendant]
poses a great danger to society. Under the circumstances of this case, the sentence is not
grossly disproportionate to the crime and does not constitute cruel and unusual
punishment.” (Ibid.; see Felix, supra, 108 Cal.App.4th at p. 1001 [“The lack of a
criminal record is not determinative in a cruel or unusual punishment analysis”].)
Defendant has failed to show that his punishment is disproportionate to the
sentences imposed for similar offenses in California. In People v. Sanchez, supra, 24
Cal.4th 983, 986, the defendant was convicted of second degree murder for causing a
death while driving under the influence of alcohol, and the trial court imposed a sentence
of 15 years to life for that offense. Although the defendant did not challenge that portion
of his sentence as cruel or unusual punishment, the California Supreme Court affirmed
that portion of the judgment. (Id. at p. 993.) In People v Poroj (2010) 190 Cal.App.4th
165, 171, the trial court imposed a 15-year-to-life prison sentence which was not
disturbed by the appellate court.
Defendant has not shown that his sentence imposes a disproportionate
punishment as compared to the punishments imposed in other jurisdictions for the same
offense, or as compared to the punishments imposed in California for offenses considered
more serious than the instant offense, within the meaning of Lynch, supra, 8 Cal.3d at
Notwithstanding the sad circumstances surrounding defendant‟s conduct,
the fact remains he deliberately decided to drive under the influence of alcohol,
ultimately causing Mackenzie to lose her life. We cannot say the California Constitution
compels the reduction of defendant‟s sentence.
The judgment is affirmed.
BEDSWORTH, ACTING P. J.