Filed 5/5/23 P. v. Zile CA4/1

Opinion after vacating opinion filed on 1/31/23

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ZACHARIAH ZILE,

Defendant and Appellant.

 D080382

 (Super. Ct. No. FSB19002378)

APPEAL from a judgment of the Superior Court of San Bernadino

County, Michael Smith, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal, Deputy Attorney General, Randall D. Einhorn and Susan Elizabeth 

Miller, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Zachariah Zile appeals a judgment following his jury 

conviction of murder. On appeal, he contends the trial court erred by: (1) 

denying his motion to discharge a juror; and (2) failing to instruct the jury on 
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vehicular manslaughter with gross negligence as a lesser offense of murder.

We reject these contentions and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On the evening of July 9, 2019, Zile arrived at the home he shared with

his girlfriend, April B. After the two of them ate dinner, they watched 

television and Zile ingested cocaine and drank Jack Daniels and Coke, and 

beer. Later that night, Zile said he was going to Apple Valley, where he had

a lot of friends, and he wanted April to go with him. April refused to go, so

Zile left by himself in his car around midnight. 

Around 1:00 a.m., on July 10, 2019, Zile was driving his car westbound

on the 210 freeway at a high rate of speed when he “wiped out” and slammed 

into the back of a SUV at the Highland Avenue Exit. Zile got out of his car, 

looked “out of it,” and asked a witness, “What did I hit?” He smelled like 

alcohol and appeared drunk. He told another witness he was “f’d up,” and 

was “on a gang of shit.” He told a responding officer he had been drinking 

“tons” of rum and Coke or whiskey. Zile’s performance on field sobriety tests 

was consistent with someone who is intoxicated. His blood sample tested 

positive for cocaine and showed a blood alcohol level of .185 percent. Zile also 

said he was driving between 80 and 100 miles per hour, that he did not know 

where he was coming from or what happened, because when you “hit another 

vehicle at 80 miles an hour and you’re drunk, you don’t know what 

exactly . . . happens.”

Zile’s car had major damage to the front end and the SUV had damage 

to the right back. The driver of the SUV, Sabrena G., was lying on the road 

about 10 to 15 feet from the SUV. She was having trouble breathing, but was 

able to communicate shortly after the accident. Sabrena ultimately died from 
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multiple blunt force injuries sustained in the accident, including internal 

bleeding, a collapsed lung, and a skull fracture. 

Zile had previous DUI convictions in 2007 and 2010. In both cases, he 

signed a plea agreement containing a Watson advisement,1 which stated, “If 

you continue to drive while under the influence of alcohol or drugs, or both, 

and, as a result of that driving, someone is killed, you can be charged with 

murder.”

On July 11, 2019, the San Bernadino County District Attorney filed an 

information charging Zile with one count of murder. (Pen. Code,2 § 187, 

subd. (a)). On October 7, 2021, a jury convicted Zile as charged. On January 

7, 2022, the trial court sentenced Zile to state prison for 15 years to life. On 

February 4, 2022, Zile filed a notice of appeal. 

DISCUSSION

I.

Failure to Discharge Juror

Zile contends the trial court abused its discretion when it failed to 

grant his motion to discharge a juror. 

A. Additional Factual Background

Prior to opening statements by the parties, the trial court instructed 

the jury that “it’s very, very important not to talk to anyone about the case, 

not to talk to anyone about any of the people involved in the case, including 

any of the attorneys, witnesses, or parties, and that includes not discussing it 

with any family members, friends, spiritual advisors, or anyone else.” The 

1 People v. Watson (1981) 30 Cal.3d 290.

2 All further statutory references are to the Penal Code, unless noted 

otherwise.
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court further directed the jurors not to “let anyone talk to you about the 

case.”

During the trial, the court was advised that a juror had communicated

with an employee of the district attorney’s office. Outside of the presence of 

the jury, the court convened a hearing in which K.F. testified that she was an 

executive assistant to the assistant district attorney, and that she was close 

friends with a juror and talked on the phone often. The juror called her on 

September 10, 2021, and suggested that they should have lunch. K.F. found 

out her friend was serving on a jury and she asked her friend the name of the 

district attorney. The juror did not know but said “it was a gentleman with a 

beard,” and K.F. responded that it sounded like Deputy District Attorney 

Pierce. The juror said that she thought “the guy that was sitting next to D.A. 

Pierce was hot.” The juror did not know who he was and that was the extent 

of their discussion. 

Since that discussion, K.F. said they had a couple conversations about 

cookies and housewives. K.F. also said that the juror “never even said 

anything about what case she was on, the case. Nothing. Nothing.” Neither 

the defense counsel nor the prosecutor had questions for K.F. The court then 

advised K.F. that it would be a good idea for her to avoid having any 

conversations with the juror until after the trial. K.F. apologized, saying,

“We are really sorry. We just thought it was girl talk.”

The court then questioned the juror about her conversation with K.F.

The juror told the court that she mentioned to K.F. she was on jury duty and

suggested they should have lunch if K.F. was available. The court told her it 

was a good idea to avoid further contact with K.F. until after the trial. 

Neither the defense counsel nor the prosecutor had questions for the juror. 
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After the juror was excused, defense counsel stated that he risked 

alienating the juror if he asked questions, but argued that without additional 

inquiry, the juror’s conduct must be considered prejudicial, and she should be 

excused. The prosecutor informed the court that K.F. had been walking past

his office with an investigator when the investigator stopped to ask the 

prosecutor if he was in trial. During the conversation, it was revealed that 

K.F. had spoken to a juror, and K.F. was reluctant to give the name of the 

juror. The prosecutor “pressed her on it” because he wanted to tell the court 

about the interaction. The prosecutor thought K.F. was embarrassed due to

the nature of the comment. 

After defense counsel renewed his request for additional questioning, 

the court brought the juror back in. The court asked the juror what she 

recalled about the conversation with K.F. regarding the parties involved in 

the case. The juror said that K.F. asked her how jury duty was going and the 

juror said fine, except parking was difficult. The juror also told K.F. that 

“some guy started coming in the room that reminds me of Rob Gronkowski.”

The juror explained to K.F. that Gronkowski was “a good looking football 

player.” The court asked the juror if there were any other conversations 

where anyone involved in the trial was discussed. The juror replied, “No. Not 

at all.” The court then asked, “Anything about any of that you feel is going to 

have any influence on you in this case?” The juror responded no. The court 

asked her whether “the fact that one of the witnesses looks a little bit like 

Rob Gronkowski” is going to influence the way she look at that witness. She 

responded no. 

Defense counsel then renewed his motion to excuse the juror. The 

court denied the motion, finding “there was a single conversation and it was 

innocuous and there is no likelihood of any prejudice.” The court 
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subsequently cited People v. Belmontes (1988) 45 Cal.3d 744, and People v. 

Siripongs (1988) 45 Cal.3d 548, in support of its finding that the interaction 

between K.F. and the juror was “social in nature” and “clearly demonstrates 

there was no prejudice.” Defense counsel argued that those cases did not 

involve a juror’s commentary to a member of the district attorney’s office 

about a witness in the case who was an agent of the state. Defense counsel 

also argued that a juror’s failure to follow the court’s instructions is presumed 

prejudicial. The court agreed and stated that a juror’s failure to follow 

instructions was “presumed prejudicial.” The court responded, however, that 

once it holds a hearing, “the presumption can be rebutted by a demonstration 

that there was no prejudice,” and that “is what my finding is here.” The court 

further explained that the juror “didn’t really know who it was,” other than 

“someone associated with the case.”

B. Relevant Legal Principles

We review the court’s decision for abuse of discretion. (People v. 

Holloway (2004) 33 Cal.4th 96, 124–125 (Holloway).) We will not find error 

in the court’s decision unless the record shows as a demonstrable reality the 

juror was unable to perform her duty. (§ 1089; People v. Martinez (2010) 47 

Cal.4th 911, 943.)

A defendant accused of a crime has a constitutional right to a trial by 

unbiased, impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal. Const., 

art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 

Cal.4th 97, 110 (Hitchings).) An impartial jury is one in which no member 

has been improperly influenced and each member is capable of deciding and 

willing to decide the case solely on the evidence before it. (In re Hamilton

(1999) 20 Cal.4th 273, 293–294.) Upon a showing of good cause, section 1089 
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authorizes a court to discharge a juror who is “found to be unable to perform 

his or her duty . . . .”

“ ‘A sitting juror’s actual bias, which would have supported a challenge 

for cause, renders [her] “unable to perform [her] duty” and thus subject to 

discharge and substitution . . . .’ ” (People v. Lomax (2010) 49 Cal.4th 530, 

589.) “ ‘Actual bias’ in this context is defined as ‘the existence of a state of 

mind on the part of the juror . . . [that would] prevent the juror from acting 

with entire impartiality, and without prejudice to the substantial rights of 

any party.’ ” (People v. Nesler (1997) 16 Cal.4th 561, 581.) “When a court is 

informed of allegations which, if proven true, would constitute good cause for 

a juror’s removal, a hearing is required.” (People v. Barnwell (2007) 41 

Cal.4th 1038, 1051, italics omitted.) 

Jurors must be admonished not to “converse . . . with anyone else . . . on 

any subject connected with the trial.” (§ 1122, subd. (a)(1).) “[A]ny 

unauthorized communication between a juror and a nonjuror regarding the 

matter pending before the jury is misconduct and presumptively prejudicial.” 

(People v. Merriman (2014) 60 Cal.4th 1, 98.) The prosecution must rebut the 

presumption by demonstrating “there is no substantial likelihood that any 

juror was improperly influenced to the defendant’s detriment.” (People v. 

Clair (1992) 2 Cal.4th 629, 668.) A juror’s misconduct creates a rebuttable 

presumption of prejudice, but the presumption is rebutted if the record shows 

the nature of the misconduct and the surrounding circumstances were such 

that there was no reasonable probability of prejudice. (Hitchings, supra, 6 

Cal.4th at pp. 118–119.) Where the misconduct is “ ‘ “ ‘of such a trifling 

nature that it could not in the nature of things have been prejudicial to the 

moving party and . . . that the fairness of the trial has been in no way 

affected by such impropriety,’ ’’ ’ ” the presumption of prejudice is rebutted. 
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(People v. Stewart (2004) 33 Cal.4th 425, 510 (Stewart), quoting People v. 

Miranda (1987) 44 Cal.3d 57, 117–118.) As our Supreme Court observed in 

In re Carpenter (1995) 9 Cal.4th 634, “The jury system is fundamentally 

human. . . . If the system is to function at all, we must tolerate a certain 

amount of imperfection short of actual bias. To demand theoretical perfection 

from every juror during the course of a trial is unrealistic.” (Id. at pp. 654–

655.)

“ ‘On appeal, . . . whether juror misconduct was prejudicial presents a 

mixed question of law and fact “ ‘subject to an appellate court’s independent 

determination.’ ” [Citation.]’ ” (People v. Weatherton (2014) 59 Cal.4th 589, 

598. An appellate court accepts the trial court’s factual findings and 

credibility determinations if they are supported by substantial evidence. 

(Ibid.)

Although we review for abuse of discretion the trial court’s ruling 

whether to discharge a juror pursuant to section 1089, “we have made clear 

that such review involves a ‘heightened standard [that] more fully reflects an 

appellate court’s obligation to protect a Zile’s fundamental rights to due 

process and to a fair trial by an unbiased jury.’ [Citations.] Specifically, the 

juror’s ‘inability to perform’ his or her duty ‘must appear in the record as a 

demonstrable reality.’ [Citations.]” (People v. Armstrong (2016) 1 Cal.5th 

432, 450.)

Applying this heightened standard of review, we conclude that the trial 

court did not abuse its discretion.

C. Analysis

Zile contends the court prejudicially erred and deprived him of his 

constitutional right to a trial by an impartial jury when it determined the 

juror had not committed prejudicial misconduct. 
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The juror failed to comply with the court’s instructions “not to talk to 

anyone about any of the people involved in the case, including any of the 

attorneys, witnesses, or parties.” The comments by the juror were 

misconduct. (§ 1122, subd. (a)(1) [jurors must not converse with anyone else 

on any subject connected with the trial].) Although such misconduct creates 

a rebuttable presumption of prejudice, reversal is not required unless there is 

a substantial likelihood one or more jurors were improperly influenced by 

bias. (Holloway, supra, 33 Cal.4th at p. 125.) “Where the misconduct is not 

‘inherently likely’ to have affected the vote of any of the jurors, prejudice is 

not shown.” (People v. Hord (1993) 15 Cal.App.4th 711, 727 (Hord).) 

We agree with the court’s conclusion the misconduct was “innocuous”

and that there was no “prejudice,” and thus we conclude the court did not err 

in denying Zile’s motion to discharge. Upon learning about the juror’s 

conversation with K.F., the court properly conducted a hearing to determine 

what had occurred. As the judge of credibility, the trial court was entitled to 

credit the juror’s and K.F.’s description of their conversation. The court “is 

afforded broad discretion in deciding whether and how to conduct an inquiry 

to determine whether a juror should be discharged. [Citations.] Our 

assessment of the adequacy of a court’s inquiry into juror misconduct is 

deferential: . . . except when bias is apparent from the record, the trial judge 

is in the best position to assess the juror’s state of mind during questioning.” 

(People v. Clark (2011) 52 Cal.4th 856, 971.) Here, the court questioned the 

juror and K.F. about their conversation and both gave consistent accounts. 

The court had the opportunity to observe their demeanor, assess their 

credibility during the questioning and determine that the testimony was 

“accurate.” We do not reweigh the court’s credibility determinations. (People 

v. Allen and Johnson (2011) 53 Cal.4th 60, 75 [“a reviewing court defers to 
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the factual determinations the trial court makes when assessing the 

credibility of the jurors”].)

Based on that inquiry, the court found the juror had talked to K.F. and

had commented about the appearance of a government witness, it was not 

about “the merits of the case” or “credibility of a witness or someone who 

might be a witness,” and it “was a relatively brief and innocuous comment.”

The court also determined that the juror did not have any other 

conversations where anyone involved in the trial was brought up or 

discussed, that it was a “single conversation” and there was “no likelihood of 

any prejudice.” Substantial evidence supports these findings. Because of the 

court’s determination the comments were “social in nature” and “clearly 

demonstrate[d] . . . no prejudice,” the presumption of prejudice had been 

overcome. 

Indeed, the comments by the juror were not inherently likely to have 

affected the vote of the juror because they were brief and fleeting. Such 

transitory comments “are normally innocuous, particularly when a comment 

stands alone without any further discussion.” (Hord, supra, 15 Cal.App.4th 

at p. 728; accord, People v. Avila (2009) 46 Cal.4th 680, 727.) Unlike juror 

misconduct arising from receiving evidence out of court, concealing bias on 

voir dire, or conducting experiments, here the nature of the misconduct was 

sufficiently minimal that it “ ‘ “could not in the nature of things have been 

prejudicial” ’ ” (Stewart, supra, 33 Cal.4th at p. 510) to Zile or have affected 

the fairness of the trial.

The misconduct in this case is akin to that in Stewart, supra,33 Cal.4th 

at page 510, in which a juror asserted in a declaration: “2. During a break in 

the testimony of witness Jackie Coghlan, I saw Ms. Coghlan in the ladies 

restroom; [¶] 3. While in the restroom, I said to Ms. Coghlan something to the 
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effect of [¶] ‘I know we’re not suppose[d] to have any contact but I just wanted 

to tell you’re [sic] a very nice looking (or attractive) lady.’ [¶] 4. I have no 

idea what she said after that because I walked out the door. I know she said 

something back but I didn’t hear it because I went out the door. [¶] 5. This 

brief contact did not in any way affect my ability to be fair and impartial in 

this case.” The California Supreme Court described that misconduct as “a 

juror’s technical violation of the court’s admonition not to discuss the case 

with nonjurors [that] was ‘ “trifling’ misconduct” ’ that could not have 

prejudiced the defendant.” (People v. Merriman, supra, 60 Cal.4th at p. 98.)

Zile’s attempt to distinguish cases fails to change our conclusion. (See, e.g., 

Stewart, supra, 33 Cal.4th at p. 511 [concluding that although a juror 

committed misconduct in making a comment to a witness about her 

appearance, it was “trifling” and not likely to influence the juror]; People v. 

Loot (1998) 63 Cal.App.4th 694, 698 [concluding that although a juror 

committed misconduct in discussing the prosecutor’s personal life, the 

resulting presumption of prejudice was rebutted].)

We conclude that the court did not err by denying the motion because 

the presumption of prejudice from juror misconduct was rebutted. The court 

thoroughly investigated the incident by interviewing K.F. and the juror 

separately, and ascertained that the misconduct involved a brief conversation 

about a trifling topic unrelated to the merits of the case. The court 

determined after the questioning that the juror’s brief comments reflected 

“girl talk among two girls who have been friends and clearly demonstrates 

there was no prejudice.” The juror assured the court that nothing about the 

way she felt would have any influence on her in the case, including how she 

looks at the witness. The court advised the juror against talking with K.F. or 

anybody associated with the case for the rest of the trial. We presume the 
12

juror followed the instructions. (People v. Frederickson (2020) 8 Cal.5th 963, 

1026.) On this record, we cannot fault the court’s determination. 

Accordingly, we conclude Zile has not established the court abused its 

discretion by finding the juror had not committed prejudicial misconduct.

II.

Failure to Give Gross Vehicular Manslaughter Jury Instruction

Zile contends the trial court erred when it failed to instruct the jury on 

gross vehicular manslaughter as a lesser included offense of murder. 

A. Additional Procedural Background

Zile asked the trial court to instruct the jury on voluntary and 

involuntary manslaughter. The prosecutor objected. The trial court denied

Zile’s request based on “the current state of the law,” finding “the definitions 

of manslaughter for both voluntary and involuntary do not apply to the 

situation in which a death results from driving of a motor vehicle.”

Following the prosecutor’s closing argument, Zile requested that the 

court instruct the jury on vehicular manslaughter. The court declined Zile’s

request, finding that “vehicular manslaughter or voluntary manslaughter or

involuntary manslaughter are not properly lesser included offenses” of 

murder.

B. Analysis

A trial court must instruct on a necessarily included lesser offense if 

there is substantial evidence that the defendant is guilty only of the lesser 

and not the greater. (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).) 

However, a trial court has no duty to instruct on lesser offenses that are not

necessarily included in the charged offense. “Rather, a jury need only be 

instructed on offenses that the prosecution actually charged either explicitly 

or implicitly (because they were necessarily included within explicitly 
13

charged offenses).” (People v. Hicks (2017) 4 Cal.5th 203, 211, italics added 

(Hicks).)

To determine whether one crime is necessarily included in another, 

courts must apply either the statutory elements test or the accusatory 

pleading test. (People v. Shockley (2013) 58 Cal.4th 400, 404.) Under the 

elements test, if the statutory elements of the greater offense include all of 

the statutory elements of the lesser offense, the latter is necessarily included 

in the former. (Ibid.) Under the accusatory pleading test, if the facts actually 

alleged in the accusatory pleading include all of the elements of the lesser 

offense, the latter is necessarily included in the former. (Ibid.) In a case like 

this one, where the accusatory pleading merely incorporates the statutory 

definition of the charged offense without referring to the particular facts, the 

court must apply the elements test. (People v. Robinson (2016) 63 Cal.4th 

200, 207.)

As Zile acknowledges, the California Supreme Court has ruled that the 

offense of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) 

“is not a lesser included offense within murder.” (People v. Sanchez (2001) 

24 Cal.4th 983, 988–992 (Sanchez).) Applying the elements test, the court 

reasoned that “the statutory elements of murder do not include all the 

elements of the lesser offense” because “[g]ross vehicular manslaughter while 

intoxicated requires proof of elements that need not be proved when the 

charge is murder, namely, use of a vehicle and intoxication.” (Id. at p. 989.)

The reasoning of Sanchez applies equally to gross vehicular 

manslaughter under section 192, subdivision (c)(1). The statutory elements 

of murder do not include all the elements of gross vehicular manslaughter 

because gross vehicular manslaughter requires proof of an element not 

required for murder, namely, “driving a vehicle.” (§ 192, subd. (c)(1).) Under 
14

Sanchez, therefore, gross vehicular manslaughter is not a lesser included 

offense of murder under the elements test. (People v. Bettasso (2020) 

49 Cal.App.5th 1050, 1057–1060; People v. Wolfe (2018) 20 Cal.App.5th 673, 

685–686 (Wolfe).)

Zile argues that Sanchez creates a substantial injustice for him because

it allowed the prosecutor to impose an “ ’all-or-nothing’ choice that required 

[the jury] to choose between a conviction for murder or a complete acquittal.”

He also acknowledges that we are bound by the Supreme Court’s decision. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We 

therefore join our colleagues in Bettasso and Wolfe in holding that gross 

vehicular manslaughter is not a lesser included offense of murder under 

Sanchez. For this reason, the trial court committed no error by failing to 

instruct the jury on gross vehicular manslaughter.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.