People v. Moulton CA6

Filed 10/22/26 P. v. Moulton CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIXTH APPELLATE DISTRICT THE PEOPLE, H052544 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1800341) v. TROY ALEXANDER MOULTON, Defendant and Appellant. Defendant Troy Alexander Moulton drove through a stop sign in a residential area while speeding. He struck and killed Barrett Grabow, who was walking through a crosswalk at the intersection. A jury convicted Moulton of second degree murder and two other offenses. Moulton asserts that the trial court erroneously instructed the jury on the requirements for implied malice murder. He also contends that his trial counsel was ineffective by misapprehending the implied malice murder standard in response to a jury question, and that the cumulative effect of the two alleged errors deprived him of a fair trial. We will affirm the judgment for the reasons explained below. I. FACTUAL AND PROCEDURAL BACKGROUND Grabow was a student at Santa Clara University School of Law. One evening in February 2018, Grabow attended a school event in downtown San Jose. Grabow then took a ride share vehicle to his residence on Newhall Street in San Jose, having consumed alcohol that evening. The car dropped Grabow off at 10:58 p.m. At some point after 11:00 p.m., Grabow was standing on the sidewalk at the intersection of Newhall Street and Park Avenue. The intersection had stop signs at each of the four corners with a crosswalk at each portion of the intersection. The posted speed limit on Park Avenue leading up to the intersection was 30 miles per hour. While a law enforcement officer described Park Avenue in this area as a “pretty main thoroughfare,” one local resident described it as “[m]ore of a mellow street for residents.” The weather was dry and clear at the time. Two street lamps near the intersection were on. A car with four people in it pulled up on Newhall Street to the intersection and stopped at one of the stop signs. As the car was stopped at the intersection and as Grabow walked through the intersection’s crossway, a driver in a black Toyota Camry on Park Avenue went through the intersection without stopping, striking Grabow with the Camry’s hood. Three of the four people in the stopped car estimated the Camry was going 55 to 70 miles per hour during or immediately after the impact. The fourth, a minor at the time, stated the car was going “fast,” but he could not provide an estimated speed. An expert in biomechanics opined at trial that “this impact was at least in the range of 40 to 50 miles an hour,” and “given the type of damage, it’s probably closer to that 50 plus mile an hour range.” The stopped car’s occupants saw Grabow “flip into the air” and onto the Camry. The prosecution’s biomechanics expert opined that because of the Camry’s speed, Grabow’s head and the upper part of his body were “embedded” in the windshield, with the body then “flop[ping] back down” and denting the car. The Camry drove off without stopping, with Grabow on the car. After the impact, a witness saw the Camry “swerving” while driving down Park Avenue, with a person lying face down on the car. The upper body of the person was on the windshield and the person’s legs were “sticking up from the hood.” The witness 2 testified that the driver seemed to be driving in a way to dislodge the body from the hood of the car before the car made a U-turn and drove over a sidewalk, and then turned onto another street. Video footage of the street onto which the Camry turned showed the driver stop, get out of the car, open the front passenger door, and move a heavy object from within the car before leaving. Emergency responders found Grabow lying face down on a sidewalk and seriously injured. A police officer described the area where Grabow was found as “fairly dark” and not busy. Paramedics transported Grabow to the hospital, where he died from numerous blunt force injuries sustained in the collision. The morning after the collision, Moulton knocked at the home of a friend. Moulton’s friend was the registered owner of the black Camry, though Moulton had his friend’s permission to drive it. Moulton told his friend he had wrecked the car, and took the friend to see it. Moulton then drove the car to another location and the two covered the “smashed” windshield. A witness who saw them move and cover the car called 911 because the car looked suspicious. After Moulton and his friend moved and covered the car, Moulton told his friend he had hit a person with the car. At trial, the friend testified that Moulton agreed to turn himself in without much prompting. However, a police officer who interviewed the friend testified that the friend stated he had to tell Moulton to turn himself in “over and over and over and over . . . hundreds of times,” and Moulton only agreed to do so when the friend said he would call the police if Moulton did not turn himself in. Moulton turned himself in to police at about 5:00 p.m. the day after the collision. Moulton’s driver’s license expired on August 30, 2015, more than two years before he collided with Grabow. The prosecution charged Moulton by amended information with three counts: 3 (1) murder (Pen. Code, § 187, subd. (a); count 1);1 (2) vehicular manslaughter with gross negligence (§ 192, subd. (c)(1); count 2) with enhancements for inflicting great bodily injury (§§ 667, 1192.7) and fleeing the scene (Veh. Code, § 20001, subd. (c)); and (3) misdemeanor driving while unlicensed (Veh. Code, § 12500, subd. (a); count 3). The jury found Moulton guilty of all three counts, and found the allegations regarding count 2 true. The trial court sentenced Moulton to prison for 15 years to life. This appeal followed. II. DISCUSSION A. Implied Malice Murder Instruction Moulton argues the trial court erroneously instructed the jury on implied malice murder, asserting that the court’s instruction failed to conform to the explanation of implied malice the California Supreme Court set forth in People v. Reyes (2023) 14 Cal.5th 981 (Reyes). He asserts that reversal is required under the standard for prejudice set forth in Chapman v. California (1967) 386 U.S. 18. The Attorney General responds that the implied malice instruction was not erroneous, and that even if error occurred, the error was harmless beyond a reasonable doubt. We conclude the trial court did not err in instructing the jury in accordance with the version of CALCRIM No. 520 in effect at the time of Moulton’s trial. 1. Factual background At trial, the prosecution specified that its theory on count 1 was that Moulton committed second degree murder with implied malice. Without objection from Moulton’s trial counsel, the trial court instructed the jury on implied malice using the version of CALCRIM No. 520 in effect at the time of trial. The trial court instructed the jury that Moulton acted with implied malice if: “1. He intentionally committed the act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; 1 Unspecified statutory references are to the Penal Code. 4 [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.” 2. Legal principles and standard of review “Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187, subd. (a).) “[M]alice may be express or implied.” (§ 188, subd. (a).) “Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Id., subd. (a)(2).) “Implied malice has both objective and subjective components. The objective test requires ‘ “ ‘an act, the natural consequences of which are dangerous to life . . . .’ ” ’ [Citation.] This means the act must carry ‘ “a high degree of probability that it will result in death.” ’ [Citation.] The subjective test requires that the act be performed ‘ “ ‘by a person who knows that his conduct endangers the life of another . . . .’ ” ’ [Citation.]” (People v. Vasquez (2018) 30 Cal.App.5th 786, 793.) “Translation of the statutory elements of implied malice into plain, understandable jury instructions has undergone an evolutionary process.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 (Nieto Benitez).) Concerning the “ ‘abandoned and malignant heart’ ” aspect of implied malice, “[t]wo lines of decisions developed, reflecting judicial attempts to ‘translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’ [Citations.]” (Ibid.) The first line—the “Thomas” line (People v. Thomas (1953) 41 Cal.2d 470, 480 (conc. opn. of Traynor, J.) (Thomas))—“held that malice could be implied where ‘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.’ [Citations.]” (Nieto Benitez, supra, at pp. 103-104.) The second approach—the “Phillips” line (People v. Phillips (1966) 64 Cal.2d 574, 587 (Phillips))—“held that malice could be implied where the killing was proximately caused by ‘ “an act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person who knows that his 5 conduct endangers the life of another and who acts with conscious disregard for life.’ ” [Citations.]” (Nieto Benitez, supra, at p. 104.) While the two lines of decisions frame the standard for implied malice murder somewhat differently, the California Supreme Court has “made it abundantly clear that the two definitions of implied malice which evolved . . . articulated one and the same standard.” (People v. Dellinger (1989) 49 Cal.3d 1212, 1219.) “Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of death to another.” (People v. Knoller (2007) 41 Cal.4th 139, 152 (Knoller).) “We review claims of instructional error de novo, considering ‘whether there is a reasonable likelihood that the trial court’s instructions caused the jury to misapply the law in violation of the Constitution.’ [Citation.]” (People v. Melgoza (2025) 115 Cal.App.5th 632, 643.)2 3. Analysis Moulton argues the trial court was required to instruct jurors that his act carried a high degree of probability that death would result, but our Supreme Court has rejected such an argument. In Nieto Benitez, supra, 4 Cal.4th 91, the Supreme Court rejected an argument that an instruction substantively identical to the one used here “misstates the law because the instruction omits a requirement that defendant commit the act with a high probability that death will result.” (Id. at p. 111.) The Supreme Court held that “the two linguistic formulations—‘an act, the natural consequences of which are dangerous to life’ and ‘an act [committed] with a high probability that it will result in death’ are equivalent and intended to embody the same standard.” (Ibid.) Thus, the Supreme Court held that 2 Moulton did not object at trial to the instruction at issue here. “A failure to object, however, does not prevent a defendant from challenging an instruction on appeal if the asserted error affected the defendant’s substantial rights.” (People v. Thomas (2023) 14 Cal.5th 327, 382.) The Attorney General does not assert forfeiture here, and Moulton asserts that he received ineffective assistance of counsel if this issue is considered forfeited. We therefore do not apply forfeiture to this issue. 6 no modification to the instruction to incorporate a standard of a “high probability that death will result” was required. (Ibid.) Similarly, the California Supreme Court in Knoller, supra, 41 Cal.4th 139 “reaffirm[ed] the test of implied malice we set out in People v. Phillips . . . and . . . reiterated in many later cases: 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.” ’ [Citation.]” (Id. at p. 143.) The Supreme Court rejected the position that “implied malice requires a defendant’s awareness that his or her conduct had a high probability of resulting in death . . . .” (Ibid.) Moulton argues that the Supreme Court’s decisions in Reyes and People v. Cravens (2012) 53 Cal.4th 500 (Cravens) “change the landscape” of implied malice murder such that Nieto Benitez and Knoller are no longer controlling. He asserts that Reyes demonstrates that the trial court’s instruction should have utilized the “ ‘high degree of probability that it will result in death’ ” language from the Thomas line of decisions. He also contends that concerning the subjective component of implied malice, the trial court should have instructed the jury that Moulton had to know his act involved a high probability that it would result in death. We are not persuaded. The California Supreme Court issued its opinion in Reyes about six months before Moulton’s trial began. In Reyes, the defendant was convicted of second degree murder following a killing committed by a fellow gang member where Reyes was present and was not the shooter. (Reyes, supra, 14 Cal.5th at p. 984.) Reyes later petitioned for resentencing under section 1172.6, arguing he could have been convicted under the later- abrogated natural and probable consequences theory. (Reyes, supra, at p. 984.) The trial court denied the petition, finding Reyes was guilty beyond a reasonable doubt of implied 7 malice murder, an alternative theory that remained valid under amended California murder law. (Ibid.) Our Supreme Court held that to the extent the trial court’s ruling was based on a direct perpetrator theory of implied malice, substantial evidence did not support this conclusion and the trial court “misapprehended what is required as a matter of law to prove aiding and abetting implied malice murder.” (Reyes, supra, 14 Cal.5th at p. 988.) The court quoted Knoller, supra, 41 Cal.4th at page 143 in stating: “Murder is committed with implied malice 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.’ ” ’ [Citation.]” (Reyes, supra, at p. 988.) The Supreme Court first held that Reyes did not commit an act that proximately caused the victim’s death. (Id. at pp. 988-989.) The Supreme Court then took “issue with the trial court’s conclusion that ‘[t]he natural and probable consequences’ of Reyes’s act of traveling to rival gang territory with several other gang members, one of whom was armed, ‘were dangerous to human life.’ ” The Reyes court stated: “To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must ‘ “involve[] a high degree of probability that it will result in death.” ’ [Citations.]” (Reyes, supra, at p. 989.) The court held that while it may have been likely that Reyes’s act of bicycling to an area on the edge of territory belonging to a rival gang would result in a confrontation and it was possible someone would get hurt or killed, “the act does not by itself give rise to a high degree of probability that death will result.” (Ibid.) Reyes dealt with whether substantial evidence supported the trial court’s conclusion in a section 1172.6 evidentiary hearing that the defendant acted with implied malice. The court in Reyes did not address the instructional requirements concerning implied malice murder, and the Reyes court did not disapprove of the earlier decisions in 8 Nieto Benitez and Knoller or any other decision recognizing that the Thomas and Phillips lines of decisions articulate the same implied malice standard. To the contrary, the Reyes court cited Knoller in reaffirming that “under the objective component of implied malice, ‘ “ ‘dangerous to life’ ” ’ means the same thing as a ‘ “high degree of probability that” ’ the act in question ‘ “will result in death” ’ [citation].” (Reyes, supra, 14 Cal.5th at p. 989.) Following the Supreme Court’s opinion in Reyes and after Moulton’s trial, the Judicial Council modified CALCRIM No. 520 to state that for implied malice to be present, the defendant must “ ‘commit[] an act that caused the death of (another person . . .)’ and ‘[t]he natural and probable consequences of the (act . . .) were dangerous to human life in that the (act . . .) involved a high degree of probability that it would result in death.’ [Citations.]” (People v. Pierce (2025) 114 Cal.App.5th 508, 536 (Pierce).) However, as the Fifth District Court of Appeal concluded in Pierce, supra, 114 Cal.App.5th 508, the version of CALCRIM No. 520 given in the instant case is legally correct notwithstanding Reyes or the later modifications to the instruction. (Pierce, supra, at p. 514.) As the court in Pierce concluded: “Reyes did not involve jury instructions or hold that trial courts must instruct that the act required to support a finding of implied malice must involve a high probability that death will result. Nor did Reyes purport to overrule or abrogate Nieto Benitez. To the contrary, the court reaffirmed its long-standing precedent that the Thomas and Phillips tests articulate the same standard. Because Reyes did not decide an instructional issue and did not overrule or disapprove of the high court’s prior cases, we are bound by its decision in Nieto Benitez.” (Id. at pp. 535-536.) Thus, “the instruction under the former version of CALCRIM No. 520 remains a correct statement of law, notwithstanding any clarification in Reyes.” (Pierce, supra, at p. 536.) 9  Likewise, Cravens does not demonstrate that Nieto Benitez and Knoller are no longer controlling or that the instruction in Moulton’s case was erroneous. In Cravens, the Supreme Court held that substantial evidence supported the jury’s finding of implied malice where the defendant punched the victim, resulting in the victim hitting his head on the pavement and dying. (Cravens, supra, 53 Cal.4th at pp. 510-511.) Like Reyes, Cravens did not address the instructional requirements for implied malice, and Moulton does not cite anything in the court’s opinion in Cravens that disapproves of Nieto Benitez or Knoller. To the contrary, the court in Cravens quoted Knoller in setting forth the implied malice standard. (Cravens, supra, at p. 507.) Moulton relies on Justice Liu’s concurring opinion in Cravens, which stated that the Supreme Court had not disavowed the Thomas wanton disregard for human life standard, but Justice Liu’s concurring opinion is not precedential. (See People v. Cagle (2025) 117 Cal.App.5th 1034, 1046.) In addition, Justice Liu’s opinion “express[ed] no view on Thomas’s continued validity,” and Justice Liu agreed that the defendant’s conduct supported a finding of implied malice under the Phillips formulation. (Cravens, supra, at p. 514 (conc. opn. of Liu, J.).) The prosecution here did not allege Moulton was under the influence of alcohol or drugs at the time of the charged offenses, and thus the instant case does not involve implied malice under the scenario articulated in People v. Watson (1981) 30 Cal.3d 290.3 Nonetheless, Moulton relies on Justice Evans’s concurring statement in the California Supreme Court’s denial of review in People v. Doaifi (June 25, 2024, G062098) [nonpub. opn.], review denied Oct. 16, 2024, S286155 (conc. stmt. of Evans, J.). He notes that Justice Evans stated that “Watson murder cases often present the sort of ‘close case[s]’ ” in which the language from Reyes—there is a high degree of probability that the act will 3 “Under certain circumstances, malice may be implied when a defendant kills someone while willfully driving under the influence of alcohol, thus subjecting the defendant to a charge of murder. [Citation.] This is ‘colloquially known as a Watson murder’ . . . . [Citation.]” (People v. Munoz (2019) 31 Cal.App.5th 143, 152.) 10 result in death—“may make a significant difference.” (Doaifi, supra, at p. *37, fn. omitted.) Here, we are skeptical that running through a stop sign at a pedestrian crosswalk while driving a minimum of 40 to 50 miles per hour at night and then not assisting the struck pedestrian presents a close case akin to the types of Watson murder cases Justice Evans noted. Even assuming this is such a close case, however, Justice Evans did not specifically address the propriety of the implied malice instruction used here and her concurring statement “is not binding on us.” (Pierce, supra, 114 Cal.App.5th at p. 529.) Moulton’s argument concerning the subjective component of implied malice is based on the contention that the standard for the subjective component should match that of the objective component. Because we have concluded that the instruction did not erroneously state the objective component of implied malice, no change to the instruction concerning the subjective component is warranted. As the California Supreme Court stated in Knoller, supra, 41 Cal.4th 139: “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 trial court was not required to instruct the jury that implied malice requires “a defendant’s awareness that his or her conduct had a high probability of resulting in death . . . .” (Ibid.) Thus, the trial court’s implied malice instruction did not incorrectly state the standard for the subjective component of implied malice. B. Ineffective Assistance of Counsel—Response to Jurors’ Question Moulton argues that he received ineffective assistance of counsel when his counsel “advanced a puzzlingly incorrect argument to the contrary” of the trial court’s response to a jury question about the act at issue in the murder count. The Attorney General responds that Moulton’s counsel was not ineffective, and Moulton was not prejudiced by any deficient performance by his counsel. We conclude that even assuming defense 11 counsel’s argument in response to the jury’s question constituted deficient performance, Moulton was not prejudiced. 1. Factual background During deliberations, the jury asked for a “clearer explanation” of the act Moulton allegedly intentionally committed under an implied malice theory. The jury asked: “[D]oes act mean from hitting the victim? Or is there another meaning? Can we please get an example [be]cause there is a misunderstanding regarding the definition.” The trial court responded that the prosecution was not required to prove that Moulton intended to hit Grabow, stating: “The act is the alleged act of intentionally driving his vehicle in a manner, the natural and probable consequences of which[] were dangerous to human life; and the act caused the death of Barrett Grabow.” The trial court also referred the jury back to CALCRIM No. 520, stating the jury “should decide what act or acts, if any, caused the death of Barrett Grabow.” The trial court stated that its response was formed with the parties’ input, and that both parties asked to present brief closing argument in response to the jury’s question. The prosecutor’s argument stated that the relevant act was “the act of driving in the way that Mr. Moulton did,” and that if the natural and probable consequences of Moulton’s driving were dangerous to human life, then Moulton acted with implied malice. Moulton’s counsel then asked to provide the jury with “information that I had submitted this morning,” and the trial court declined the request, stating that the parties had agreed to the response the court provided, not the draft response represented by defense counsel’s handout. Defense counsel then argued to the jury that “our interpretation of the question that you raised concerning what does act mean led us to the conclusion that it is an affirmative conscious and knowing conduct intentionally done, is not an omission to act,” and that the defense’s position was that “it is a conscious act with the intended consequences, plain and simple.” The trial court then sustained an objection that this argument misstated the law, after which defense counsel concluded: “Our 12 example is being aware of a pedestrian in a crosswalk in a street and continuing to drive knowing the vehicle would strike and injure the pedestrian. Knowing is really the key here, and I’d ask you to take that into consideration.” 2. Legal principles “To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845.) “[R]arely will an appellate record establish ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) “ ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ’ [Citations.]” (Samayoa, supra, at pp. 845-846.) 3. Analysis In response to the jury’s request for more specific information as to what act Moulton allegedly intentionally committed, the trial court instructed that the jury needed to find Moulton intentionally drove his vehicle in a manner, the natural and probable consequences of which were dangerous to human life, and the act caused Grabow’s death. As Moulton acknowledges, the trial court’s response—a response the court stated both parties agreed to—was a correct statement of the law. The trial court also referred the jury back to CALCRIM No. 520, which we have concluded correctly stated the requirements for implied malice. 13  The subsequent argument by Moulton’s trial counsel that the jury needed to find “a conscious act with the intended consequences, plain and simple” was not consistent with the trial court’s response. Likewise, the defense’s example of “a pedestrian in a crosswalk in a street and continuing to drive knowing the vehicle would strike and injure the pedestrian” was not in line with the trial court’s instruction following the jury’s question. However, even assuming that this argument constitutes deficient performance by counsel, Moulton has not demonstrated he was prejudiced by such deficient performance. The trial court’s answer to the jury’s query was legally correct, and the trial court sustained an objection to Moulton’s counsel’s argument and instructed the jury that it was to follow the court’s instructions. The parties’ arguments following the jury’s question were brief, and focused only on what the relevant act was. The jury also had the benefit of the defense’s earlier closing argument asserting that the prosecution did not prove implied malice, an argument with which Moulton does not take issue. In addition, the evidence that Moulton acted with implied malice was strong, given his actions including speeding and failing to stop at a stop sign and crosswalk. Even assuming Moulton’s counsel provided deficient representation in the argument responding to the jury’s question, we find no reasonable probability that, but for counsel’s failings, the result would have been more favorable to Moulton. C. Cumulative Effect of Errors Moulton finally argues that the cumulative prejudicial effect of the errors asserted above deprived him of a fair trial. “The premise behind the cumulative error doctrine is that, while a number of errors may be harmless taken individually, their cumulative effect requires reversal.” (People v. Mani (2022) 74 Cal.App.5th 343, 378.) We have presumed error concerning only the second issue discussed above, and have found no 14 prejudice concerning this issue. The cumulative prejudice doctrine does not apply because there are no multiple errors under which prejudice may cumulate. III. DISPOSITION The judgment is affirmed. 15  _______________________________ Greenwood, P. J. WE CONCUR: ______________________________________ Danner, J. ______________________________________ Bromberg, J. H052544 People v. Moulton