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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Ramon GONZALEZ, Defendant and Appellant.

No. B103468.

Decided: February 03, 1998

Daniel J. Gunther, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Mary Sanchez and Kerrigan M. Keach, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, Ramon Gonzalez (appellant) was convicted of two counts of second degree murder (Pen.Code, § 187, subd. (a)) and two counts of gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a)).   He was sentenced to prison for a total term of 30 years to life.   He appeals, contending that:  (1) the trial court erred in failing to give instructions on the element of implied malice that followed his theory of defense;  (2) that he could not be convicted of both gross vehicular manslaughter and second degree murder of the same victim;  and (3) the trial court's instruction on reasonable doubt violated his right to due process.   We find appellant's first and third arguments to be without merit, but we agree with appellant on the second argument.   Therefore we affirm the judgment with respect to the convictions for the two counts of second degree murder and reverse it as to the two counts of gross vehicular manslaughter while intoxicated.


At approximately midnight on July 26, 1994, appellant was driving his Chevrolet in Van Nuys when he sideswiped a car, drove through a red light and collided with a Datsun 280Z driven by Enrique Garcia at the intersection of Balboa and Saticoy.   Both cars came to a halt.   Ben Hicks and Rodney Byrd, who were in a car traveling down Balboa, saw appellant's car when it cut it front of them, witnessed the collision with the 280Z, and stopped their vehicle.   Byrd got out of his car, carrying part of a steering wheel locking device commonly referred to as the Club, and went up to appellant's Chevrolet.   He tapped on the window glass with the Club four or five times.   Without acknowledging Byrd, appellant put his car into reverse and left the scene.   As appellant drove off, Byrd threw his Club at appellant's car, hitting the left fender.   Appellant made several turns and Byrd lost sight of him, but then observed appellant going through several red lights at a speed of 50 to 60 miles an hour.   Appellant's car collided with a Geo driven by Aaron Hawkins at the intersection of Topham and Tampa.   Both Aaron Hawkins and his passenger, Mary Hawkins, died in the collision.

No one witnessed the actual point of impact, although there were conflicting reports about whether appellant had gone through a red light.

Appellant was taken to the hospital following the accident.   At the hospital, he told police officers that he went to a bar at approximately 6 p.m.   the evening before the accident and left somewhere between 9 and 10 p.m.   He did not recall being in an accident.   A blood sample taken from appellant at 2:30 a.m.   the following morning had a blood alcohol content of .21.   At trial, a police criminalist testified that, based on appellant's blood alcohol content and his statement that he had begun drinking at around 6 p.m., appellant would have had to have consumed approximately 13 12-ounce cans of beer.

Also at trial, an accident reconstruction specialist testified that appellant's car was probably traveling at 72 or 73 miles per hour when it collided with Hawkins' vehicle, which had been traveling at approximately 15 miles per hour.   The collision took place in the intersection.   The speed limit for both streets was 35 miles per hour.   Evidence was also elicited that appellant had been convicted of driving under the influence in 1988 and had been required to attend an alcohol education program.

In defense, appellant presented the testimony of a psychiatrist and the preliminary hearing testimony of Enrique Garcia, the driver of the Datsun 280Z involved in the first collision.1  The psychiatrist testified that while appellant's reading and mathematics capabilities were minimal, appellant could function at a normal level.   Garcia had testified that after his car had collided with appellant's he saw Byrd hitting appellant's car with a dark object that looked like a bat and that appellant drove off with Byrd in pursuit.


1. Jury Instructions

The jury was instructed, inter alia, on the elements of murder, the definition of express malice and implied malice,2 and that, “In determining whether the defendant harbored implied malice, you may consider all relevant aspects of the defendant's knowledge and conduct leading up to and resulting in the fatal crash, including, but not limited to, drinking in anticipation of driving.”

Appellant contends that the trial court had a sua sponte duty to give two instructions on his defense theory of imperfect self-defense.   He argues the jury should have been instructed that:  (1) if he left the first accident with an honest but unreasonable belief that Byrd was an imminent peril to his life or threat of great bodily injury, he could not be guilty of murder;  and (2) implied malice is demonstrated only when a defendant has a base, antisocial motive and a wanton disregard for human life and commits an act that involves a high degree of probability that it will result in death.   In a supplemental brief filed January 6, 1998, he contends that the court's instructions essentially directed a prosecution verdict, relying in part on the recently decided case United States v. Houser (9th Cir.1997) 130 F.3d 867.

a. Imperfect Self-Defense

 When the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and cannot be convicted of murder.  (In re Christian S. (1994) 7 Cal.4th 768, 783, 30 Cal.Rptr.2d 33, 872 P.2d 574.)   A trial court is required to give an instruction on this so-called “imperfect self-defense” only if there is substantial evidence to support it.   (Id. at p. 783, 30 Cal.Rptr.2d 33, 872 P.2d 574;  People v. Randolph (1993) 20 Cal.App.4th 1836, 1841, 25 Cal.Rptr.2d 723.)  “In making this determination, the trial court is not to weigh the credibility of the witnesses and any doubts as to the sufficiency of the evidence should be resolved in favor of the defendant.  [Citation.]”  (People v. Randolph, supra, 20 Cal.App.4th at p. 1841, 25 Cal.Rptr.2d 723.)

Appellant contends that the evidence established that he left the scene of the first accident in fear of his life because Byrd, a younger man, had beat on his car and followed him.3  He argues the trial court recognized the gravity of the first encounter by pointing to statements made by the trial court during sentencing.4

Here, appellant claims that the evidence which supports his theory is the testimony that Byrd went up to appellant's car, banged on the window, and followed appellant when he drove off.   However, there is no evidence to support the inference that appellant left the scene and drove off at high speeds because he was afraid of Byrd. Byrd testified that he went up to investigate appellant's condition after witnessing the Chevrolet sideswipe one car and then collide with Garcia's vehicle.   He testified he tapped on the window, telling appellant to get out of the car, but appellant's eyes were closed.   According to Byrd, even after tapping on the window and yelling, appellant remained oblivious to him.   Appellant then suddenly drove away and Byrd and his friend followed him.   After a series of turns, Byrd lost sight of appellant and never got close enough to get a license plate number.   There was no evidence that Byrd knew appellant previously or followed him to commit bodily harm (compare with In re Christian S., supra, 7 Cal.4th at p. 772, 30 Cal.Rptr.2d 33, 872 P.2d 574).   Moreover, there was no evidence that appellant was afraid of Byrd or that he felt it was necessary to drive at high speeds on the wrong side of the road to avoid Byrd.

 Appellant's high blood-alcohol content and the evidence that he disregarded all road signs and traffic lights supported Byrd's testimony that appellant was completely oblivious of Byrd. Garcia's testimony added nothing to appellant's theory because Garcia knew nothing about what appellant perceived at the time Byrd approached.   The trial court's statements at sentencing were completely in accordance with the state of the evidence.   Because appellant's theory was not supported by substantial evidence, the trial court was not required to give instructions on imperfect self-defense.  (People v. Aris (1989) 215 Cal.App.3d 1178, 1192, 264 Cal.Rptr. 167, disapproved on another point in People v. Humphrey (1996) 13 Cal.4th 1073, 1088, 56 Cal.Rptr.2d 142, 921 P.2d 1;  see People v. Ramos (1982) 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d 908.)

b. Implied malice

The instruction given the jury on implied malice contained the language, “The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.  [¶] ․ An act is done with conscious disregard when the act was deliberately performed by a person who knows that there is a high probability that his conduct endangers the life of other persons.”   Appellant complains of prejudicial error because of the omission from the instruction of implied malice of the required element of a “base, antisocial motive.”   Appellant claims inclusion of this element is prescribed by the Supreme Court in In re Christian S., supra, 7 Cal.4th at page 780, footnote 4, 30 Cal.Rptr.2d 33, 872 P.2d 574[“[I]mplied malice is shown when ‘the defendant for 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.’ ”]

We have reviewed In re Christian S. and do not find that it dictates the use of such language whenever there is an instruction on implied malice.   The language appellant relies upon is a quote from Justice Traynor's concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480, 261 P.2d 1, and is used to explain that a finding of implied malice or express malice would preclude a finding of imperfect self-defense.

 As explained in People v. Curtis (1994) 30 Cal.App.4th 1337, 1353, 37 Cal.Rptr.2d 304, “Base, antisocial motive” means the same thing, the absence of any justification, excuse or mitigation recognized by law, and “is an allusive and elliptical term of art for an ‘element’ of the crime which is not an element at all unless the defendant places it in issue.   The ‘conscious disregard’ definition properly omits this confusing term.   It leaves the topic of justification and excuse to be covered by other instructions, which may be given as needed in a particular case.”  (Italics added.)   Here, as discussed previously, there was no substantial evidence that appellant's fear of Byrd was a justification for appellant's reckless driving.   In any event, no prejudice resulted because the jury could easily have concluded from the evidence that appellant had a base, antisocial motive and acted with a wanton disregard for human life by driving intoxicated at high speeds and disregarding traffic signals even after he had collided with two other cars.  (People v. Whitfield (1994) 7 Cal.4th 437, 454-455, 27 Cal.Rptr.2d 858, 868 P.2d 272.) 5

c. Reasonable doubt

 Appellant contends that the court's instruction on reasonable doubt unconstitutionally reduced the burden of proof and deprived appellant of his federal right to due process.6  Appellant argues that this instruction, which was recommended by the Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, 504, footnote 9, 34 Cal.Rptr.2d 558, 882 P.2d 249, lowers the burden of proof.   The trial court, obviously mindful of the deletion of the terms “moral certainty” and “moral evidence” from previous CALJIC versions of the instruction, followed the Supreme Court's recommendation.7  We find no error in its decision to do so.  (People v. Tran (1996) 47 Cal.App.4th 253, 262-263, 54 Cal.Rptr.2d 650;  People v. Barillas (1996) 49 Cal.App.4th 1012, 1022, 57 Cal.Rptr.2d 166;  People v. Carroll (1996) 47 Cal.App.4th 892, 895, 54 Cal.Rptr.2d 868.) 8

2. Manslaughter and murder convictions

Appellant contends he cannot be convicted of both gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a)) and second degree murder (Pen.Code, § 187, subd. (a)) of the same victims, relying on the factually similar, recently-decided case People v. Garcia (1995) 41 Cal.App.4th 1832, 50 Cal.Rptr.2d 127.   In response, the People argue that because gross vehicular manslaughter contains elements not contained in the elements required for murder, it cannot be a lesser included offense.   In addition, the People point out that because of the unique ramifications to a person's driving record resulting from a gross vehicular manslaughter conviction, if these convictions were reversed, appellant's driving record would appear to have only one drunk driving conviction from 1988 when he ultimately is released from state prison.9

 “ ‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’  [Citation.]”   (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595, quoting People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512.)

In Garcia, the court held that even though gross vehicular manslaughter requires findings of intoxication and driving a vehicle, which are not elements of the crime of murder, it is a lesser included offense of murder.   It reasoned that the relevant inquiry turns on the element of the unlawful killing, and that the use of the vehicle and the intoxication of the driver are merely circumstances of a type of unlawful killing.   The court explained:  “To say that because a murder can be committed without using a vehicle or being intoxicated, ․ ignores the fact that, for example, murder can be committed without the heat of passion of voluntary manslaughter.   Thus, the additional circumstance of heat of passion is no different than that of intoxication or use of a vehicle as they relate to an unlawful homicide.   Therefore, we conclude for purposes of the lesser offense analysis of unlawful homicide, the relevant inquiry turns on the core of an unlawful killing of a human being and not on the circumstances or type of unlawful killing.”  (People v. Garcia, supra, 41 Cal.App.4th at p. 1854, 50 Cal.Rptr.2d 127, italics added.)

Recently, Division 7 of this District took a position contrary to Garcia in People v. Sanchez (1997) 59 Cal.App.4th 545, 69 Cal.Rptr.2d 255.   Sanchez made the distinction between lesser included and lesser related offenses, concluding that gross vehicular manslaughter is not a lesser included offense, and that the two elements of intoxication and driving a vehicle are indispensable elements of the crime which are not shared with the crime of murder.

 We decline to follow Sanchez.   We believe that Garcia is the better reasoned decision and correctly determined that gross vehicular manslaughter while intoxicated is a lesser included offense of second degree murder established by driving under the influence with awareness of the danger to others.   The lack of ramifications to appellant's driving record or future drunk driving convictions is not justification for allowing a dual conviction for the same killing.   We hold, in accordance with Garcia, that a person cannot be convicted for the same homicide more than once and that death through homicidal agency is “injury” within the meaning of the felony drunk driving statutes.


The judgment is reversed as to appellant's convictions for gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), counts 3 and 4).   In all other respects, the judgment is affirmed.   The trial court is directed to prepare an amended abstract of judgment.


1.   Garcia was unavailable to testify at trial.

2.   “In order to prove [murder], each of the following elements must be proved:  [¶] 1. A human being was killed. [¶] 2. The killing was unlawful, and [¶] 3. The killing was done with malice aforethought.  [¶] A killing is unlawful, if it was neither justifiable nor excusable.  [¶] ‘Malice’ may be either express or implied.  [¶] Malice is implied when:  [¶] 1. The killing resulted from an intentional act, and [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.  [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.  [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.  [¶] The word ‘aforethought’ does not imply deliberation or the lapse of considerable time.   It only means that the required mental state must precede rather than follow the act.  [¶] An act is done with conscious disregard when the act was deliberately performed by a person who knows that there is a high probability that his conduct endangers the life of other persons.”

3.   Appellant did not testify at trial.   The defense was presented by way of counsel's closing argument, as follows:  “It's quite likely that Mr. Byrd and Mr. Hicks were trying to do a good thing, that they were out there just trying to be good samaritans, but overreacted.   They did something that may have resulted in causing the accident and being the cause of an accident which occurred later.  [¶] Their conduct was negligent when you look at what Mr. Garcia said what they did.   He doesn't have them tapping on the window here.   He has them chasing.   He has them banging on the car with what is called a club․   He has them banging on the car, strikes the car twice before the car moved.  [¶] ․ And if you saw Hicks and Byrd, they want to distance themselves from this chase because they feel bad [about] what happened, how it resulted.   They have a motive in lessening what they did and the simple fact is, at the time of the collision, the circumstantial evidence points that my client was fleeing out of fear of Hicks and Byrd, as the evidence supports, and that negates malice, and he is not guilty of murder.”

4.   The court's statements were as follows:  “And I also feel-although neither of the attorneys addressed it, it might be something lingering in people's minds, and I feel the obligation to address it-and that is I don't believe that the two young men who followed [appellant] are in any way at fault for the accident here, although it was certainly inappropriate of one of the men to beat on [appellant's] car after the [first] accident, which would have scared certainly a normal person and perhaps cause them to flee from the scene of the accident.   I don't think that [appellant] even knew that the other people were there or that he was being followed under the circumstances.”

5.   Nothing in United States v. Houser, supra, 130 F.3d 867, or the other cases cited in appellant's supplemental brief, adds to his argument.

6.   The jury was instructed with the 1994 revision of CALJIC No. 2.90 as follows:  “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.  [¶] Reasonable doubt is defined as follows:  It is not a mere possible doubt;  because everything relating to human affairs is open to some possible or imaginary doubt.   It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

7.   During a discussion between counsel and the court over jury instructions, the Deputy District Attorney requested that the terms “moral certainty” and “moral evidence” be used in the reasonable doubt instruction.   The deputy public defender declined to argue on the issue at all.   The court denied the Deputy District Attorney's request.

8.   We are aware that on April 26, 1996, review was granted in People v. Doyle (S052277, app. pending), a case which involved, inter alia, the adequacy of the Freeman reasonable doubt instruction.

9.   At trial, during a discussion over whether the jury should be instructed on the relation between the two crimes, the following colloquy occurred between the court and Deputy District Attorney, Michael Pargament:  “THE COURT:  ․ If he's found guilty of all four counts, I think that's just a 654 sentencing problem.   Sort it out at the end of the case.  [¶] Mr. Pargament:  Yes. They are not lesser in the sense that they're not lesser necessarily included, which is why they were charged by the filing deputy.  [¶] THE COURT:  All right.  [¶] Mr. Pargament:  And you're actually right.   If they found him guilty of all four counts, they have to figure that out at sentencing time.”

HASTINGS, Associate Justice.

CHARLES S. VOGEL, P.J., and BARON, J., concur.

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