California Court of Appeal Mar 27, 2014 No. E056593Unpublished
Filed 3/27/14 P. v. Red CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056593
v. (Super.Ct.No. RIF145336)
STEVEN JAMES RED, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey J. Provost,
Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and William
M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant, Steven James Red, guilty of murder (Pen.
Code, § 187, subd. (a))1 and gross vehicular manslaughter while intoxicated with two
prior convictions for driving under the influence (§ 191.5, subd. (d)). The trial court
sentenced defendant to prison for a term of 15 years to life. Defendant raises two issues
“‘This rule only works in instances where “one opinion can meaningfully be regarded as
‘narrower’ than another—only when one opinion is a logical subset of other, broader
opinions,” [citation], that is to say, only when that narrow opinion is the common
denominator representing the position approved by at least five justices. When it is not
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possible to discover a single standard that legitimately constitutes the narrowest ground
for a decision on that issue, there is then no law of the land because no one standard
commands the support of a majority of the Supreme Court.’ [Citation.] ‘The only
binding aspect of such a splintered decision is its specific result . . . .’ [Citation.]”
(Ibid.)
The California Supreme Court has identified the narrowest common ground in
the Egelhoff opinion. The narrowest common ground, as indentified by our Supreme
Court, is that a statute prohibiting evidence of voluntary intoxication on the issue of a
particular mental state does not violate due process. (Atkins, supra, 25 Cal.4th at p. 93;
see also People v. Mendoza (1998) 18 Cal.4th 1114, 1141 (dis. opn. of Brown, J.).) We
are bound to follow our Supreme Court’s conclusion in Atkins. (Auto Equity Sales, Inc.
v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455-456.)
Moreover, we agree with our Supreme Court’s interpretation. The Scalia
plurality interpreted the Montana statute as an evidentiary rule and concluded it did not
violate due process. (Egelhoff, supra, 518 U.S. at pp. 42, 56.) Justice Ginsburg
interpreted the Montana statute as a mens rea definition and concluded it did not violate
due process. (Id. at pp. 57, 60.) The different reasoning concerned the interpretation of
the statute. The similar, or common-ground, reasoning concerned due process and the
ultimate conclusion that the statute did not offend the Due Process Clause. Therefore, it
is reasonable to conclude the narrowest common ground from the Egelhoff opinion is
that a prohibition on evidence of voluntary intoxication, as it relates to the capability to
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form a particular mental state, does not violate due process. In sum, we find
defendant’s argument to be unpersuasive.
B. PROSECUTORIAL MISCONDUCT
1. CONTENTION
Defendant asserts there are four different segments of the prosecutor’s closing
argument that reflect prosecutorial misconduct. We address each segment in turn.
2. BACKGROUND LAW
“‘“A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must
be ‘of sufficient significance to result in the denial of the defendant’s right to a fair
trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally
unfair nevertheless violates California law if it involves ‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’ [Citations.]”’
[Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1009-1010.)
3. FIRST SEGMENT
a) Procedural History
The following comments were made during the prosecutor’s closing argument to
the jury. For reference, again, the victim’s name was Lisa Moreno.
Prosecutor: “Why, in the 21st century, in the year 2012, under certain
circumstances, do we charge murder when an individual drinks or uses drugs and kills
somebody while they’re driving? [¶] No more slaps on the wrist. No more warnings.
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No more rehab. No more excuses. No more chances. Someone is dead because of you.
They’re not coming back ever.
“Lisa Moreno didn’t get a warning. Lisa Moreno didn’t get another chance. Lisa
Moreno didn’t have the option of rehab. She’s dead, leaving an entire family to grieve
in her absence forever. [¶] How selfish. How irresponsible. You’re a murderer.
“[Defense Counsel]: Your Honor, I’m going to object. This is improper
argument designed to play on the passions and prejudices of the jury.
“The Court: Overruled.”
b) Discussion
Defendant asserts the prosecutor’s remarks improperly (1) appealed to the
sympathy and passions of the jury, and (2) expressed the prosecutor’s personal opinion.
“‘It has long been settled that appeals to the sympathy or passions of the jury are
inappropriate at the guilt phase of a criminal trial.’ [Citation.]” (People v. Vance
(2010) 188 Cal.App.4th 1182, 1192.) It is misconduct for a prosecutor to ask the jury to
view the crime through the victim’s eyes, to apply the “Golden Rule,” or to “consider
the impact of the crime on the victim’s family.” (Id. at pp. 1192-1193.) These types of
arguments are improper because they ask the jury to be swayed by emotion, when the
jury should be objectively looking at the evidence. (Ibid.) It is also improper for a
prosecutor to express a personal opinion or belief in the defendant’s guilt, if the jury
might view the belief as based on information other than evidence presented at the trial.
(People v. Mincey (1992) 2 Cal.4th 408, 447.)
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The prosecutor’s remarks in this first segment were answering the question the
prosecutor posed, “Why, in the 21st century, in the year 2012, under certain
circumstances, do we charge murder when an individual drinks or uses drugs and kills
somebody while they’re driving?” The prosecutor answered the question using the facts
of the instant case, as opposed to a more general policy explanation. The prosecutor
explained that defendant was charged with murder, in addition to vehicular
manslaughter, because there comes a point where society views the criminal act as more
severe than manslaughter. The prosecutor explained that when a person, such as
defendant, is so “irresponsible,” there comes a point when it is appropriate to charge
murder.
While perhaps it would have been a cleaner argument if the prosecutor had
answered the question with a more generic policy explanation, using the facts of the
case to answer the question did not rise to the level of misconduct. The prosecutor was
not asking the jury to consider the impact on the victim’s family, he was explaining why
a murder charge is sometimes appropriate. When the prosecutor referred to defendant
as a murderer, he was not alluding to knowledge of defendant’s guilt that was derived
from evidence not presented at trial; rather, he was explaining that, under the evidence
presented, defendant’s criminal act rose to the level of murder—not merely
manslaughter—despite defendant being intoxicated at the time of the killing.
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4. SECOND SEGMENT
a) Procedural History
Prosecutor: “But it was Lisa Moreno, not [defendant], who paid the ultimate
price. [¶] Did Lisa Moreno make some mistakes that night? Sure. She shouldn’t have
trusted her boyfriend to keep her safe. She shouldn’t have trusted her boyfriend that,
although he was under the influence, would not drive like a runaway train. Lisa should
not have gotten into that car that night. But did Lisa Moreno pay for her mistakes that
night? You bet she did. She paid the ultimate price. She wasn’t given a jury of her
peers. She wasn’t given the presumption of innocence. She wasn’t given a fair trial.
She couldn’t call any witnesses on her behalf.
“[Defense Counsel]: Your Honor, I’m going to object. This is inappropriate
closing argument.
“The Court: Overruled. [¶] You may continue.
“[Prosecutor]: She couldn’t even breathe her last breath. What Lisa Moreno was
given was a casket. [¶] Now, the defendant is entitled to a fair trial. He’s entitled to
the presumption of innocence. But now it’s time for [defendant] to pay for his mistakes.
He got his fair trial. Now you can take the blinders off. You heard overwhelming
evidence that proves the defendant guilty of murder beyond any reasonable doubt.
“Lisa is entitled to justice. Lisa’s family is entitled to justice. People who had
the misfortune of being on the road with [defendant] deserve justice. The citizens of
Riverside County deserve justice. We are entitled to justice against a grown adult with
DUIs spanning from the ‘80s, the ‘90s, and the 2000s who simply just doesn’t get it.
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“[Defendant], DUIs are dangerous to us, to everyone. If you didn’t get it the four
[sic] other times you were convicted of the same thing, you’ll never get it. It’s not just a
matter of time before you kill someone. [Defendant], you already killed someone. [¶]
The only way [defendant] will get it is if you ladies and gentlemen unanimously find
him guilty of murder.
“[Defense Counsel]: Your Honor, I’m going to object at this time. That is
inappropriate argument. I’d ask to be heard.
“The Court: Overruled.”
b) Discussion
Defendant presents two arguments related to this second segment. First,
defendant asserts the prosecutor improperly appealed to the passions and sympathy of
the jury with the first half of his comments, such as, “She wasn’t given the presumption
of innocence. She wasn’t given a fair trial. She couldn’t call any witnesses on her
behalf.”
When read in context, the prosecutor was urging the jury not to blame the victim
for her death. The prosecutor conceded the victim made a mistake by being a passenger
in a car with an intoxicated driver, but the prosecutor wanted the jury not to judge the
victim for this “offense,” since she did not have the benefit of a trial. The prosecutor
was not appealing to the jury to act out of passion and sympathy. To the contrary, the
prosecutor was urging the jury not to act out of passion and to stay within the confines
of the criminal justice system—to not somehow find the victim guilty for her own
death, and thus find defendant not guilty, when the victim could not have a trial.
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Defendant’s second argument concerning this segment concerns the second half
of the prosecutor’s comments, such as, “The citizens of Riverside County deserve
justice. We are entitled to justice against a grown adult with DUIs spanning from the
‘80s, the ‘90s, and the 2000s who simply just doesn’t get it.” Defendant asserts the
prosecutor improperly urged the jury to be “the voice of the community.”
It is misconduct for a prosecutor to “urge jurors to convict a criminal defendant
in order to protect community values, preserve civil order, or deter future lawbreaking.
The evil lurking in such prosecutorial appeals is that the defendant will be convicted for
reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by
such appeals to believe that, by convicting a defendant, they will assist in the solution of
some pressing social problem.” (U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142,
1149.)
Read in context, the prosecutor was not asking the jury to be the voice of the
community. Rather, the prosecutor asked the jury to hold defendant accountable for his
personal actions, and the prosecutor gave the jury the impression that a murder
conviction would be the only appropriate remedy for defendant’s criminal act given
defendant was aware of the dangers of intoxicated driving but continued to drive while
intoxicated, ultimately resulting in the victim’s death. In other words, the prosecutor
was not presenting defendant’s past offenses and calling for the jury to protect the
community; the prosecutor presented defendant’s past offenses as a means of
convincing the jury that murder, rather than just vehicular manslaughter, was the
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appropriate crime for which defendant should be convicted. Accordingly, we conclude
the prosecutor did not commit misconduct.
5. THIRD SEGMENT
a) Procedural History
Prosecutor: “The defendant knows the dangers of drinking and driving because
he’s a four-time loser. He’s an expert in drugs and alcohol. I know some of the medical
studies out there—we don’t have too much on meth. But perhaps [defendant] lost his
calling of being a toxicologist, because he’s an expert in the field. He certainly knows
plenty about meth and the dangers of meth and the dangers of alcohol and drinking and
driving. He’s got DUIs in the ‘80s, in the ‘90s, in the 2000s. Heck, if he was a sports
team, he’d be a dynasty. The 1990s Cowboys, Troy Aikman, Emmitt Smith, Michael
Irvin got nothing on this guy.
“[Defense Counsel]: I’m going to object again. He’s asking the jury to consider
the prior convictions for something other than what it’s admissible for.
“The Court: Overruled.”
b) Discussion
Defendant asserts the prosecutor improperly referenced defendant’s prior
convictions in order to urge the jury to act as “the voice of the community.”
As set forth ante, the jury was instructed on implied malice murder. There are
mental and physical components of implied malice. (People v. Craven (2012) 53
Cal.4th 500, 508.) “[T]he physical component [is] ‘“the performance of ‘an act, the
natural consequences of which are dangerous to life,’”’ and the mental component being
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‘“the requirement that the defendant ‘knows that his conduct endangers the life of
another and . . . acts with a conscious disregard for life.’”’ [Citation.]” (Ibid.)
Evidence of a prior drunk driving conviction is relevant to the issue of whether
defendant knew his conduct endangered another and had a conscious disregard. (People
v. McCarnes (1986) 179 Cal.App.3d 525, 533 [Fourth Dist., Div. Two]; People v.
Brogna (1988) 202 Cal.App.3d 700, 709.)
The prosecutor’s references to defendant’s past acts of intoxicated driving were
not requests for the jury to protect the community from drunk drivers. Rather, the
prosecutor was establishing the idea that defendant must have known, due to his many
prior convictions, that his conduct endangered the victim’s life. Thus, the prosecutor
was establishing the connection between the evidence and the law of implied malice.
Accordingly, we conclude the prosecutor was not improperly urging the jury to act as
the voice of the community.
6. FOURTH SEGMENT
a) Procedural History
Prosecutor: “The defendant can’t be punished for both of these crimes because
both involve[] the same conduct. The murder is him driving under the influence like a
bat out of hell. A gross vehicular manslaughter involves him being under the influence
and driving. Just because he can’t be punished on both doesn’t mean he can’t be
convicted on both.
“[Defense Counsel]: Your Honor, object [sic]. I believe that misstates the law.
“The Court: Overruled.”
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b) Discussion
Defendant contends the prosecutor committed misconduct by discussing
punishment with the jury. The People assert defendant forfeited this issue for appeal by
failing to raise a misconduct objection in the trial court.
“‘“[A] defendant may not complain on appeal of prosecutorial misconduct unless
in a timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.”
[Citation.]’ [Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 760.) Since defendant
did not object to the punishment comments at the trial court on the ground of
prosecutorial misconduct, we conclude the matter has been forfeited for appeal.
Defendant asserts the issue was not forfeited because, prior to trial, defendant
moved to exclude any argument referencing punishment. In response to that motion,
the trial court said, “I also presume that both counsel or all counsel will abide by the
ethical constraints, and case authority, and address that if it does appear to have gone
over the line.” (Italics added.)
As set forth ante, an objection on the basis of prosecutorial misconduct must be
timely. (People v. Dykes, supra, 46 Cal.4th at p. 760.) Defendant’s pretrial motion was
discussed on April 26. The prosecutor’s closing argument comments were made on
May 10. Given the two-week lapse in time, the pretrial motion would not make for a
timely closing argument objection. Moreover, the trial court instructed the attorneys to
raise the issue again if it appeared counsel had “gone over the line.” Thus, counsel
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needed to raise an objection if there was misconduct. In sum, we are not persuaded the
issue was preserved for appeal.
7. CUMULATIVE EFFECT
Defendant asserts the prosecutor’s remarks, when considered together, amount to
misconduct. As set forth ante, the prosecutor’s remarks in the first three segments did
not amount to misconduct, and any misconduct issues in the fourth segment was not
preserved for review. Since we have not found misconduct, there cannot be a
cumulative harm. (People v. Tully, supra, 54 Cal.4th at p. 1023.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the statutory prohibition against considering voluntary intoxication to negate the mental state of implied malice murder does not violate due process, and that the prosecutor's closing arguments did not constitute reversible misconduct.
Issues
Whether the statutory prohibition of voluntary intoxication evidence to negate the mental state of implied malice murder violates due process.
Whether the prosecutor committed misconduct during closing arguments by appealing to jury passion and expressing personal opinions.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant’s state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so . . . .”
“The narrowest common ground, as indentified by our Supreme Court, is that a statute prohibiting evidence of voluntary intoxication on the issue of a particular mental state does not violate due process.”