Filed 8/27/14 P. v. Najera CA4/1
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                      COURT OF APAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063875

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN304993)

JOSE NAJERA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Kathleen

M. Lewis, Judge. Affirmed.



         Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.

         Defendant and appellant Jose Najera was convicted of second degree murder (Pen.

Code, § 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (Pen.
Code, § 191.5, subd. (a); count 2) with a multiple victim bodily injury allegation (Veh.

Code, § 23558), driving under the influence causing injury (Veh. Code, § 23153, subd.

(a); count 3) with two great bodily injury allegations (Pen. Code, § 12022.7, subd. (a)),

evading a police officer causing death (Veh. Code, § 2800.1, subd. (a); count 4) with two

great bodily injury allegations (Pen. Code, § 12022.7, subd. (a)), unlawful taking and

driving a vehicle (Veh. Code, § 10851, subd. (a); count 5), and possession of a controlled

substance (Health & Saf. Code, § 11377; count 6). The People also pled and proved five

prison priors (Pen. Code, §§ 667.5, subd. (b) & 668), a serious felony prior (Pen. Code,

§§ 667, subd. (a)(1), 668, & 1192.7, subd. (c)), and a strike prior (Pen. Code, § 667,

subds. (b)-(i)). Najera was sentenced to serve an indeterminate term of 45 years to life in

state prison.1

       Najera now appeals. First, he contends the trial court erred in refusing to provide

the jury with an instruction he proposed on implied malice; second, in a related argument,

he contends Penal Code former section 22 unconstitutionally prevented him from

presenting evidence of his intoxication; third, he argues the trial court erred in denying

his motion to dismiss his strike prior; finally, Najera contends his driving under the

influence causing injury conviction on count 3 is a lesser included offense of his

manslaughter conviction on count 2 and should therefore be dismissed. We find no error:

Najera's proposed instruction included language that has been rejected by the Supreme


1      Thirty years to life on count 1 (15 years doubled for Najera's strike prior), six
years on count 5 (the upper term of three years, doubled) to run consecutive with count 1,
four consecutive one-year terms for four of Najera's prison priors (the first having been
stayed), and five years for Najera's serious felony prior, for a total of 45 years to life.
Sentence on all other counts was either ordered to run concurrent with the above (count
6) or was stayed.
                                              2
Court and could be refused on that ground alone; Penal Code former section 22 defines

criminal culpability and does not limit the admissibility of evidence with respect to that

culpability; given the nature of Najera's strike and his current convictions, the trial court

did not abuse its discretion in denying his motion to strike; finally, where, as here, the

defendant has killed one victim and injured others, the defendant may be convicted of

both manslaughter and driving under the influence causing injury. Accordingly, we

affirm the judgment of conviction.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On the morning of April 25, 2007, Najera was driving a stolen car. He had two

passengers: his friend, David Lopez, and Lopez's girlfriend, Rachel Gaxiola. At

approximately 9:00 a.m., San Diego County Sherriff's deputies attempted to stop Najera's

car, having received a report it was stolen. Najera initially pulled the car over to the side

of the road but then made a sharp U-turn and rapidly accelerated; Najera narrowly missed

oncoming traffic and drove on the wrong side of a divided roadway at speeds up to 80

miles per hours for just under a minute. The chase finally ended when Najera collided

head-on with a 76-year-old motorist, Jean Cooke.

       During the pursuit, Gaxiola asked Najera if she could get out of the car, and both

she and Lopez removed their seatbelts. At one point, Lopez opened his door.2 All three



2       Additionally, one of the sheriff's deputies involved with the investigation testified
that, in the hospital, Gaxiola had told him that as Najera made his initial U-turn, Lopez
had asked to be let out of the car and had attempted to exit it but was pulled back in by
Najera. Other deputies also reported seeing Lopez's door open and his arm and leg hang
out of the car while Najera made his U-turn. Gaxiola testified that she had no memory of
Lopez asking to get out of the car, of Najera pulling Lopez back into the car, or of
making a statement to investigators while in the hospital.
                                              3
occupants were still in the car, however, when it collided with Cooke's car.

       All four people involved in the collision were taken to the hospital, where Lopez

was pronounced dead. Gaxiola had several severe bone fractures; she spent the next two

and a half months in the hospital and was still in "constant pain" at the time of the trial.

Cooke also suffered several broken bones and a collapsed lung; she still experienced

symptoms of her injuries, including difficulty standing, at the time of trial.

       Najera was treated for several fractures and lacerations. Najera admitted to

doctors at the hospital that he had used methamphetamine the evening before the

collision and heroin approximately five hours before the collision. These admissions

were confirmed by later blood tests and consistent with the fact that a usable amount of

methamphetamine was found in his pants pocket.

       As we indicated, at trial Najera proposed and the trial court rejected a jury

instruction that distinguished the implied malice needed to commit murder from gross

negligence. The jury returned a verdict of guilty on all counts and true findings on the

bodily injury allegations; in separate proceedings, the trial court found true all the prior

conviction and prison term allegations.

       At the time of sentencing, Najera moved to strike his prior felony conviction under

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 528 (Romero). The court

denied his motion and sentenced him to an indeterminate term of 45 years to life.

                                       DISCUSSION

                                               I

                                 Proposed Jury Instruction

       We first address Najera's contention that the lower court erred in refusing his

                                              4
proposed jury instruction regarding the distinction between gross negligence and implied

malice. We review alleged instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218.) As Najera correctly notes, "the general rule is that a trial court

mayrefuse a proffered instruction if it is an incorrect statement of law, is argumentative,

or is duplicative." (People v. Gurule (2002) 28 Cal.4th 557, 659.) Here, the proposed

instruction contained an incorrect statement of law and could be rejected on that ground.

       Preliminarily, we note that, the trial court gave the jury a version of CALCRIM

No. 520 with respect to implied malice, which stated that Najera acted with implied

malice if he: "One, intentionally committed an act; two, the natural and probable

consequences of the act were dangerous to human life; three, at the time he acted he

knew his act was dangerous to human life; and, four, he deliberately acted with conscious

disregard for human life." In contrast, Najera's proposed instruction defined implied

malice as requiring that Najera "knew his driving actually created a high probability that

there would be a death or serious bodily injury."3 (Italics added.) In doing so, the


3       Najera's proposed instruction stated: "Gross Negligence v. Implied Malice [¶]
Murder, based upon implied malice, and gross vehicular manslaughter, based on criminal
negligence, both involve an unintentional killing. 'Malice' required for murder differs
from 'gross or criminal negligence' required for manslaughter. [¶] You have been
instructed in the law of second degree implied malice murder. You have also been
instructed as to the law of gross vehicular manslaughter while intoxicated. The
difference between the two offenses is best explained as the difference between a
subjective standard and an objective standard or, stated another way, the difference
between what the defendant actually knew [subjective standard], and what the defendant
should have known [objective standard] but did not actually know. [¶] 'Implied malice'
is found by applying a subjective test: that test is whether defendant actually and
personally knew of the high probability of death or serious injury from his actions, and
consciously disregarded it. 'Gross negligence' is found by applying an objective test: that
test is whether a reasonable person in the defendant's position would have been aware of
the high risk involved. [¶] If, after evaluating all the evidence you are left believing
                                              5
proposed jury instruction included language expressly disapproved by the court in People

v. Knoller (2007) 41 Cal.4th 139, 142 (Knoller).

       In Knoller, the defendant was convicted of second degree murder when two very

large dogs she owned attacked and killed a neighbor while the defendant was walking

them. Our Supreme Court rejected the trial court's conclusion that, to be guilty of murder

under a theory of implied malice, the defendant must have known that her conduct

involved "'a high probability of death to another human being.'" (Knoller, supra, 41

Cal.4th at p. 157.) The court also rejected the Court of Appeal's alternative conclusion

that "implied malice can be based simply on a defendant's conscious disregard of the risk

of serious bodily injury to another." (Id. at p. 142.) The court stated: "Malice is implied

when the killing is proximately caused by '"an act, the natural consequences of which are

dangerous to life, which act was deliberately performed by a person who knows that his

conduct endangers the life of another and who acts with conscious disregard for life."'


beyond a reasonable doubt that the defendant knowingly became intoxicated before he
knowingly drove a vehicle in a manner which he knew posed a significant threat to others
of death or serious bodily injury, he can be found guilty of second degree murder. If, on
the other hand, you are left believing beyond a reasonable doubt that he should have
known that intentionally using an intoxicating substance before knowingly driving a
vehicle in a manner which he should have known was dangerous to human life, but you
are left with a reasonable doubt as to his subjective awareness of the high risk of death or
serious bodily injury, he can be found guilty of gross vehicular manslaughter, but not
murder. [¶] Stated another way, in order to prove murder here, the prosecution must
prove beyond a reasonable doubt that at the time defendant was driving, he knew his
driving actually created a high probability that there would be a death or serious bodily
injury, and that the defendant consciously disregarded this possibility. If, after
consideration of all the evidence, you have a reasonable doubt as to whether the
defendant had the requisite subjective awareness, as required by this instruction, you
must give the defendant the benefit of that doubt and find him Not Guilty of murder, but
Guilty of gross vehicular manslaughter if he should have known of the danger of death or
serious bodily injury." (Original italics, underscoring added.)
                                             6
[Citation.] In short, implied malice requires a defendant's awareness of engaging in

conduct that endangers the life of another—no more, and no less." (Id. at p. 143.) The

court once again endorsed an instruction, taken from People v. Phillips (1966) 64 Cal.2d

574, 587 (Phillips), which implies malice when killing is proximately caused by "'"an act,

the natural consequences of which are dangerous to life, which act was deliberately

performed by a person who knows that his conduct endangers the life of another and who

acts with conscious disregard for life."'" (Knoller, supra, at p. 157.)

        The Knoller court held that requiring that the defendant know her conduct

involved a high probability of causing the death of another was improper because it

converted the objective standard set forth earlier by Justice Traynor in his concurring

opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 (Thomas) to a subjective

standard. Under the Thomas test, malice may be implied when a defendant with "a base,

antisocial motive and with wanton disregard for human life[] does an act that involves a

high degree of probability that it will result in death." (Ibid.) As the court in Knoller

explained, neither the Thomas test nor the preferred formulation set forth in Phillips

require that the defendant subjectively know his or her conduct involved a high

probability of death. (Knoller, supra, 41 Cal.4th at p. 157.)

        In addition to the trial court's error in conflating the objective and subjective

elements of the Thomas test, the court found that, in any event, because of its obscure

phraseology, courts should no longer apply the Thomas formulation but instead should

instruct juries with the more straightforward Phillips test. (Knoller, supra, 41 Cal.4th at

p. 157.) CALCRIM No. 520 and the version given to the jury here articulate the Phillips

test.

                                               7
       The Knoller court also found the appellate court's definition, which only required

conduct that involves a risk of serious bodily injury, was too low a standard and was

likewise an incorrect statement of law. (Knoller, supra, 41 Cal.4th at p. 156.)

       Here, Najera's proposed instruction was defective under Knoller. In repeating the

high probability standard, the proposed instruction was more akin to the Thomas test than

the preferred Phillips formulation, which the trial court here provided to the jury. More

importantly, like the trial court's defective standard in Knoller, Najera's proposed

instruction improperly required proof Najera knew there was a high probability his

driving would cause death. (See Knoller, supra, 41 Cal.4th at p. 157.) All that is

required is knowledge that the conduct endangers life. (Ibid.) Like the Court of Appeal's

defective alternative formulation in Knoller, Najera's instruction would also improperly

suggest to the jury that they could find implied malice where, instead of a likelihood of

death, there was only a likelihood of serious bodily injury.

       In sum, because Najera's instruction was legally defective on each of the grounds

discussed by the court in Knoller, the trial court had no obligation to give it. (See People

v. Gurule, supra, 28 Cal.4th at p. 659.)

                                             II

                              Penal Code former section 224

       In a closely related argument, Najera argues that former section 22

unconstitutionally excludes exculpatory evidence and prevented him from showing that,



4      Effective January 1, 2013, Penal Code former section 22 was renumbered as Penal
Code section 29.4. (Stats. 2012, ch. 162, § 119.) All further statutory references are to
the Penal Code unless otherwise indicated.
                                              8
in light of his intoxication, he was not acting with the implied malice needed to prove

second degree murder. We find no defect in former section 22.

       Najera relies on Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), where the

United States Supreme Court upheld a Montana law substantially similar to former

section 22. In her controlling concurring opinion, Justice Ginsberg reasoned that a law

barring evidence of voluntary intoxication could be unconstitutional if it merely sought to

exclude relevant evidence, but it would not be if it redefined the mens rea requirement of

crimes. She found the Montana law did the latter as it was found in Montana's criminal,

as opposed to evidentiary, code sections, and because it "'extract[s] the entire subject of

voluntary intoxication from the mens rea inquiry.'" (Egelhoff, at pp. 57-58 (conc. opn. of

Ginsberg, J.).) Justice Ginsberg noted that such a redefinition was within the

Legislature's power and did not relieve the prosecution of their burden to prove a mental

state, as it still required them to prove either "(1) the defendant caused the death of

another with actual knowledge or purpose, or (2) that the defendant killed 'under

circumstances that would otherwise establish knowledge or purpose "but for" [the

defendant's] voluntary intoxication.'" (Id. at p. 58 (conc. opn. of Ginsberg, J.).)

       As the court in People v. Timms (2007) 151 Cal.App.4th 1292 determined, former

section 22, like the Montana statute, is consistent with due process and the requirements

of Egelhoff. "Section 22 does not appear in the Evidence Code, it appears in the Penal

Code under the 'Preliminary Provisions,' along with statutes defining and setting forth the

kinds and degrees of crimes and their punishment (§§ 16–19.8), the requirement of act

and intent or negligence (§ 20), the elements of attempt (§ 21a), etc. Since 1872, the first

sentence of section 22 (now at subdivision (a)) has declared the policy of this state that an

                                              9
act is not less criminal because the actor committed it while voluntarily intoxicated. This

means that, with respect to the same conduct, an intoxicated person shoulders the same

criminal responsibility as a sober person. The next sentence declares the substantive law

that voluntary intoxication is not available to a defendant as a basis for a diminished

capacity defense. Subdivision (b) of section 22 establishes, and limits, the exculpatory

effect of voluntary intoxication on the required mental state for a particular crime. It

permits evidence of voluntary intoxication for limited exculpatory purposes on the issue

of specific intent or, in murder cases, deliberation, premeditation and express malice

aforethought. The absence of implied malice from the exceptions listed in subdivision

(b) is itself a policy statement that murder under an implied malice theory comes within

the general rule of subdivision (a) such that voluntary intoxication can serve no defensive

purpose. In other words, section 22, subdivision (b) is not 'merely an evidentiary

prescription'; rather, it 'embodies a legislative judgment regarding the circumstances

under which individuals may be held criminally responsible for their actions.' (Egelhoff,

supra, 518 U.S. at p. 57 (conc. opn. of Ginsburg, J.).) In short, voluntary intoxication is

irrelevant to proof of the mental state of implied malice or conscious disregard.

Therefore, it does not lessen the prosecution's burden of proof or prevent a defendant

from presenting all relevant defensive evidence." (People v. Timms, supra, at p. 1300.)

       We agree with the court in People v. Timms as well as the court in People v.

Martin (2000) 78 Cal.App.4th 1107, 1117, which reached the same conclusion: former

section 22 is a legitimate exercise of the Legislature's authority to redefine the elements

of crimes and not an attempt to impermissibly exclude exculpatory evidence.

Accordingly, former section 22 does not infringe on a defendant's right to due process.

                                             10
                                                III

                                   Denial of Romero Motion

       In deciding whether to dismiss a prior felony for purposes of applying the three

strikes law, a court "'must consider whether, in light of the nature and circumstances of

his present felonies and prior serious and/or violent felony convictions, and the

particulars of his background, character, and prospects, the defendant may be deemed

outside the scheme's spirit, in whole or in part, and hence should be treated as though he

had not previously been convicted of one or more serious and/or violent felonies.'

[Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.) "The striking of a prior

serious felony conviction is not a routine matter. It is an extraordinary exercise of

discretion, and is very much like setting aside a judgment of conviction after trial."

(People v. Jackson (1986) 178 Cal.App.3d 694, 697-698.)

       We review an order denying a motion to dismiss a prior strike for abuse of

discretion. (People v. Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court does not

abuse its discretion unless its decision is so irrational or arbitrary that no reasonable

person could agree with it." (Id. at p. 377.) "'[I]t is not enough to show that reasonable

people might disagree about whether to strike one or more' prior conviction allegations.

[Citation.] Where the record is silent [citation], or '[w]here the record demonstrates that

the trial court balanced the relevant facts and reached an impartial decision in conformity

with the spirit of the law, we shall affirm the trial court's ruling, even if we might have

ruled differently in the first instance' [citation]." (Id. at p. 378.)

       Najera's prior strike was for conspiracy to commit a crime within the meaning of

section 182, subdivision (a), and concerned his role in a plan to bring drugs into the Vista

                                                11
Detention Facility using his girlfriend, who was a gang associate, as an intermediary.

Najera was sentenced to three years in prison on the prior conviction. The probation

report stated that Najera is a member of the Various Carlsbad Locos street gang. In

describing Najera's criminal history, including the conspiracy conviction, the trial court

stated: "And although the facts of the strike prior are not particularly egregious, they are

similar to the facts in the other cases and involve drugs and jail and gangs are all part of

the same picture leading up to the current events. [¶] The defendant has also suffered

five prison priors as well as other felonies and misdemeanors. He's never performed well

on parole or probation supervision. He's never had a significant period outside of custody

since he was a juvenile. And he was out on another 211 case at the time -- pending trial

at the time this case occurred. Therefore, the strike remains and Romero motion is

denied. Thus, prison is mandatory."

       Najera contends the lower court abused its discretion because his prior felony

conviction was not "particularly egregious" and because the circumstances of his current

murder conviction were not aggravated, his victims were not particularly vulnerable, and

his commission of the current crimes was not exceptionally cruel or callous. We find no

abuse of discretion.

       Najera concedes that his prior convictions "show a pattern of drugs . . . theft, and

jail" but disputes that they show a pattern of gang activity.5 We reject Najera's implicit

contention that the trial court was likely to have granted the motion to dismiss his prior



5       The People point out that Najera has not disputed the findings in the probation
officer's report that he has been in a gang since 1995 or that many of his prior convictions
involved one or more codefendants.
                                             12
strike had his past activity merely disclosed a pattern of drugs and jail but not if it

disclosed a pattern of "drugs and jail and gangs." In any event, the trial court clearly

weighed the relative egregiousness of Najera's strike prior and determined that it was

outweighed by Najera's subsequent continuing criminal activity.

       Najera next contends that the lower court abused its discretion by finding that "the

facts in this case . . . were aggravated." Najera infers a finding by the court below that

Najera's victims were especially vulnerable within the meaning of California Rules of

Court, rule 4.421(a)(3). This is a mischaracterization of the trial court's reasoning and

therefore unhelpful in our review of its exercise of discretion. The trial court, in setting

out its reasons for declining to set aside Najera's prior strike offense, makes no reference

to the victims' vulnerability.

       Najera further contends that there was insufficient evidence for the trial court to

conclude that Najera's crimes were aggravated based on the finding that "[Najera's]

passengers wanted to get out of the car and he would not let them." Najera contends that

the sole evidentiary basis for this finding was the testimony of the pursuing deputies who

witnessed Lopez hang out of the car door before being pulled in and one deputy's

testimony that Gaxiola had told him that Lopez had asked to exit the car. This argument

ignores Gaxiola's own testimony that she herself had asked to exit the car, that she and

Lopez had then unfastened their seatbelts and that Lopez had opened his door. Thus,

there was ample evidence that Lopez and Gaxiola had wanted to get out of the vehicle but

were prevented from doing so by Najera's conduct.

       In sum, the trial court properly considered "the nature and circumstances of

[Najera's] present felony, the nature and circumstances of the prior strike, [and] the

                                              13
background, character and prospects of [Najera]"6 and found that Najera "falls squarely

within the strikes law." The trial court acted well within the discretion provided to it.

                                             IV

                                     Separate Offenses

       Next, Najera contends that his conviction for driving under the influence causing

injury (Veh. Code, § 23153, subd. (a); count 3) is defective because he believes it is a

lesser included offense of his conviction for gross vehicular manslaughter while

intoxicated (Pen. Code, § 191.5, subd. (a); count 2). Najera relies on People v. Binkerd

(2007) 155 Cal.App.4th 1143 and People v. Miranda (1994) 21 Cal.App.4th 1464, which

held that Penal Code section 23153, subdivision (a) was a lesser included offense of

vehicular manslaughter where the same victim was alleged in each count. Those cases do

not stand for the proposition that a defendant is, by dint of the death of one of his victims,

immunized from punishment for his injuring other victims.

       In the present case, no victim was specified in count 3, however, in the final

amended information, section 12022.7, subdivision (a) allegations were included for both

Cooke and Gaxiola, but not for Lopez. "[W]here, as here, a defendant commits vehicular

manslaughter with gross negligence -- an act of violence against the person -- he may

properly be punished for injury to a separate individual that results from the same

incident." (People v. McFarland (1989) 47 Cal.3d 798, 804, fn. omitted.) We note that,

even if there are multiple victims, one drunk driving incident can only give rise to one



6      The court made specific reference to Najera's escalating criminal activity, drug use
during the commission of the instant offense, voluminous criminal record, poor record on
parole, and pending robbery charge at the time of the instant offense.
                                             14
count of driving under the influence causing injury. (Wilkoff v. Superior Court (1985) 38

Cal.3d 345, 348.) We therefore deem count 3 to relate to all parties injured in the

accident. The jury made true findings on allegations that, while driving under the

influence, Najera injured both Cooke and Gaxiola. Neither Cooke nor Gaxiola died as a

result of their injuries. Therefore, count 3 as it relates to Cooke and Gaxiola is not a

lesser included offense of the gross vehicular manslaughter of Lopez, and multiple

punishment is therefore appropriate. (People v. McFarland, supra, at pp. 805-806.)

                                      DISPOSITION

       The judgment of conviction is affirmed.



                                                                       BENKE, Acting P. J.

WE CONCUR:


NARES, J.



AARON, J.




                                             15
