Filed 6/23/23 P. v. Woodfill CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JASON WOODFILL,

Defendant and Appellant.

 D079814

 (Super. Ct. No. SCE384091)

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

Patricia K. Cookson, Judge. Affirmed.

George L. Schraer, 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, Robin 

Urbanski, Donald W. Ostertag and Maxine Hart, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

A jury convicted Michael Jason Woodfill of second degree murder (Pen. 

Code, § 187, subd. (a))1 after he drove under the influence of alcohol and 

struck and killed a pedestrian. The trial court sentenced Woodfill to an 

indeterminate prison term of 15 years to life. 

Woodfill contends (1) the trial court erred by refusing to instruct the 

jury with his proposed modification to CALCRIM No. 520, regarding implied 

malice; (2) the trial court should have sua sponte instructed on either 

vehicular manslaughter (§§ 191.5, subds. (a), (b), 192, subd. (c)) or 

involuntary manslaughter (§ 192, subd. (b)) as a lesser included offense of 

murder; and (3) the trial court prejudicially erred in allowing the People to 

show the jury a photograph of the victim while she was alive. 

We conclude that Woodfill’s arguments lack merit, and we accordingly 

affirm the judgment. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of August 27, 2018, Woodfill was driving his large 

pickup truck in a northbound direction on a two-lane road. After drifting 

onto the right-hand dirt shoulder, Woodfill made a sharp left turn back onto 

the road and lost control of his vehicle. Woodfill’s truck struck S.G., who was 

jogging. The force of the impact launched her down the embankment next to 

the southbound side of the road. Woodfill’s truck plunged down the same 

embankment. Woodfill was unharmed, but S.G. died from her injuries.

During a field sobriety test at the scene of the accident, a law 

enforcement officer concluded that Woodfill was intoxicated. Blood drawn 

more than two hours after the accident showed a blood alcohol content of 

1 Unless otherwise indicated, all further statutory references are to the 

Penal Code.
3

between .203 to .227 percent, which is equivalent to nine to 10 standard 

alcoholic drinks. Based on certain assumptions about when the alcohol was 

consumed, an expert calculated that Woodfill’s blood alcohol content at the 

time of the accident would have been between .20 and .28 percent. An 

investigation by law enforcement determined that driving under the 

influence was a factor in the collision, along with an unsafe turning 

movement. 

An amended information charged Woodfill with one count of murder. 

At trial, the jury heard evidence that Woodfill had a history of convictions for 

driving under the influence. In connection with those convictions, Woodfill 

was warned that if he continued to drink and drive, he risked being convicted 

of murder. In closing argument to the jury, defense counsel argued, among 

other things, that jurors should not find Woodfill guilty of murder because, 

other than having consumed alcohol, there was no evidence that Woodfill was 

driving in an unsafe manner. The jury returned a verdict of guilt, and the 

trial court sentenced Woodfill to a prison term of 15 years to life. 

II.

DISCUSSION

A. The Trial Court Did Not Err in Refusing Defense Counsel’s Proposed 

Modifications to CALCRIM No. 520 on the Issue of Implied Malice

We first consider Woodfill’s contention that the trial court erred in 

rejecting defense counsel’s proposed modification to CALCRIM No. 520, 

which instructs on the elements for murder. 

“A proper pinpoint instruction must be given at a defendant’s request.” 

(People v. Mora and Rangel (2018) 5 Cal.5th 442, 498.) “The court may, 

however, ‘properly refuse an instruction offered by the defendant if it 

incorrectly states the law, is argumentative, duplicative, or potentially 

confusing [citation], or if it is not supported by substantial evidence.’ ” 
4

(People v. Hovarter (2008) 44 Cal.4th 983, 1021.) We apply the de novo 

standard of review when determining whether the trial court erred in 

refusing to give a requested pinpoint instruction. (People v. Johnson (2009) 

180 Cal.App.4th 702, 707.)

Murder can be based on either express or implied malice. (§ 188, 

subd. (a).) The People’s theory of murder was that Woodfill acted with 

implied malice when he drove under the influence. 

The standard version of CALCRIM No. 520, as given by the trial court 

in this case, contains the following language regarding implied malice:

“The defendant had implied malice if: 

“1. He intentionally committed the act; 

“2. The natural and probable consequences of the act were 

dangerous to human life;

“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.

[¶] . . . [¶]

“An act causes death if the death is the direct, natural, and 

probable consequence of the act and the death would not have 

happened without the act. A natural and probable consequence 

is one that a reasonable person would know is likely to happen if 

nothing unusual intervenes. In deciding whether a consequence 

is natural and probable, consider all of the circumstances 

established by the evidence.” (Italics omitted.)
5

Defense counsel requested that the trial court modify CALCRIM 

No. 520 by replacing the second sentence of the final paragraph set forth 

above, as follows: 

“An act causes death if the death is the direct, natural, and 

probable consequence of the act, and that death would not have 

happened without the act. The defendant must have subjectively 

known that the act was highly likely to result in death if nothing 

unusual intervened. In deciding whether a consequence is 

natural and probable, consider all of the circumstances 

established by the evidence.”2 (Italics added.) 

2 Defense counsel also requested that CALCRIM No. 520 be modified in 

other respects, but Woodfill did not argue in his appellate briefing that the 

trial court erred in rejecting those modifications. Indeed, Woodfill’s opening 

appellate brief specifically states that his argument is based solely on the 

trial court’s failure to instruct that “[t]he defendant must have subjectively 

known that the act was highly likely to result in death if nothing unusual 

intervened.” For the first time at oral argument, counsel for Woodfill referred 

to other portions of defense counsel’s proposed jury instruction that did not 

describe a defendant’s subjective knowledge. In particular, he cited defense 

counsel’s request that the trial court instruct as follows: “If you find the 

defendant was driving under the influence, you cannot find the defendant 

guilty of murder unless you also find that the defendant committed an

additional act, which was so dangerous to human life that it was highly 

probable to result in death”; and “The combination of driving a vehicle while 

under the influence of an alcoholic beverage and violating a traffic law is 

alone insufficient to establish an act that is highly likely to kill.” Counsel

contended at oral argument that the trial court erred in not instructing with 

that language, either as proposed or after modifying it. The argument is 

untimely because it was raised for the first time during oral argument. 

(People v. Carrasco (2014) 59 Cal.4th 924, 990 [“ ‘Obvious reasons of fairness 

militate against consideration of an issue raised initially’ at oral 

argument.”].) We accordingly do not consider it. (Kinney v. Vaccari (1980) 

27 Cal.3d 348, 356, fn. 6 [“An appellate court is not required to consider any 

point made for the first time at oral argument, and it will be deemed 

waived.”].)
6

The trial court rejected defense counsel’s requested modification, 

explaining that the proposed instructions would confuse the jury. 

Woodfill argues that the trial court erred in rejecting his proposed 

modification because it was a correct statement of the law based on People v. 

Watson (1981) 30 Cal.3d 290 (Watson), in which our Supreme Court first 

established that, where implied malice is present, a defendant may be found 

guilty of second degree murder upon facts which also would support a charge 

of vehicular manslaughter. (Id. at pp. 298-299.) As we will explain, 

Woodfill’s argument lacks merit because his requested modification is not an 

accurate statement of the applicable law, and the trial court therefore 

properly rejected it. 

We begin our analysis by focusing on the discussion of implied malice 

set forth in Watson, on which Woodfill premises his argument. In the course 

of its discussion, Watson identified two alternative formulations for implied 

malice. “We have said that second degree murder based on implied malice 

has been committed when a person does ‘ “ ‘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.] Phrased in a 

different way, malice may be implied when defendant does an act with a high 

probability that it will result in death and does it with a base antisocial 

motive and with a wanton disregard for human life.” (Watson, supra, 

30 Cal.3d at p. 300, italics added.) The first formulation of implied malice set 

forth in Watson is based on People v. Phillips (1966) 64 Cal.2d 574, 587, and 

is often referred to as the Phillips test. (People v. Knoller (2007) 41 Cal.4th 

139, 152 (Knoller).) The second formulation of implied malice set forth in 

Watson is based on Justice Traynor’s concurring opinion in People v. Thomas
7

(1953) 41 Cal.2d 470, 480, and is often referred to as the Thomas test. 

(Knoller, at p. 152.) 

Since Watson was decided, our Supreme Court has repeatedly 

explained that the Thomas test and the Phillips test are substantively the 

same. (Knoller, at p. 152; People v. Nieto Benitez (1992) 4 Cal.4th 91, 104

(Nieto Benitez); People v. Dellinger (1989) 49 Cal.3d 1212, 1219-1222.) “[T]he 

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 are intended to embody the same 

standard.” (Nieto Benitez, at p. 111.) Indeed, in Nieto Benitez, our Supreme 

Court specifically rejected the argument that the trial court had a sua sponte 

duty to modify the form jury instruction on implied malice to include the 

“high probability” language contained in the Thomas test. (Ibid.) 

Woodfill argues that because Nieto Benitez limited its discussion to 

whether a trial court has a sua sponte duty to instruct with the Thomas test, 

our Supreme Court has not foreclosed the possibility that a trial court has a 

duty to modify a form jury instruction, when requested by the defendant, to 

reflect the Thomas test. Woodfill contends that because the Thomas test has 

never been disapproved, it is still good law. He argues that the trial court 

accordingly should have given his pinpoint instruction, which he 

characterizes as substantively the same as the Thomas test. Specifically, 

Woodfill equates the phrase “highly likely to result in death” in his proposed 

modification with the phrase “high probability that it will result in death” in 

the Thomas test. (Watson, supra, 30 Cal.3d at p. 300.)

We need not, and do not, decide whether a trial court might, under 

appropriate circumstances, be required to instruct with the Thomas test if a 

defendant requests it to do so. Here, defense counsel simply did not request 
8

an accurate version of the Thomas test in the trial court. The Thomas test

describes the objective component of implied malice, describing the act itself

that the defendant commits. (Watson, supra, 30 Cal.3d at p. 300 [“malice 

may be implied when defendant does an act with a high probability that it 

will result in death” (italics added).] Here, however, defense counsel 

requested an instruction describing the subjective component of implied 

malice, namely that “[t]he defendant must have subjectively known that the 

act was highly likely to result in death if nothing unusual intervened.” As we 

will explain, that statement of the subjective component of implied malice 

was expressly disapproved by our Supreme Court in Knoller, supra, 

41 Cal.4th 139.3

In Knoller, the trial court granted the defendant’s new trial motion 

after analyzing the issue of implied malice using the Thomas test. (Knoller, 

supra, 41 Cal.4th at p. 157.) In so doing, the trial court “stated that a killer 

acts with implied malice when the killer ‘subjectively knows, based on 

everything, that the conduct that he or she is about to engage in has a high 

probability of death to another human being’ and thus the issue in this case 

was ‘whether or not as a subjective matter and as a matter of law [the 

defendant] knew that there was a high probability’ that her conduct would 

result in someone’s death.” (Ibid.) Our Supreme Court explained that the 

trial court’s analysis was flawed because “ ‘high probability of death’ is the

objective, not the subjective, component of the Thomas test, which asks 

whether the defendant’s act or conduct ‘involves a high probability that it will 

result in death.’ [Citation.] The subjective component of the Thomas test is 

3 Because the parties’ original appellate briefing did not discuss the 

significance of the fact that defense counsel’s proposed instructional language 

concerned the subjective component of implied malice, we afforded the parties 

an opportunity to provide supplemental briefing addressing that subject. 
9

whether the defendant acted with ‘a base, antisocial motive and with wanton 

disregard for human life.’ [Citation.] Nor does the Phillips test require a 

defendant’s awareness that his or her conduct has a high probability of 

causing death. Rather, it requires only that a defendant acted with a 

‘conscious disregard for human life.’ ” (Ibid.) “[I]mplied 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.) Therefore, “in treating the 

objective component of the Thomas test as the subjective component of that 

test, the trial court applied an erroneous definition of implied malice . . . .” 

(Id. at p. 157.)

Woodfill’s proposed modification of CALCRIM No. 520 revealed 

precisely the same flaw as the trial court’s analysis in Knoller. Woodfill 

proposed an instruction stating that “[t]he defendant must have subjectively 

known that the act was highly likely to result in death if nothing unusual

intervened.” However, “in treating the objective component of the Thomas

test as the subjective component of that test,” the proposed instruction 

incorrectly stated the applicable legal standard. (Knoller, supra, 41 Cal.4th 

at p. 157, italics added.) Accordingly, the trial court properly rejected defense 

counsel’s proposed modification.

In his supplemental briefing, Woodfill argues, “[E]ven assuming the 

high probability of death test of Thomas is incorrect with respect to the 

subjective component of implied malice, it is correct with respect to the 

objective component of implied malice. And because Knoller does not

undermine this conclusion, the trial court should have modified the requested 

instruction to make it clear it applied to the objective component of implied 

malice and should have given the instruction as so modified. This could have 

been done by changing the requested instruction so it reads: ‘To constitute 
10

implied malice the defendant’s act must have been highly likely to result in 

death if nothing unusual intervened.’ ” At oral argument, counsel for 

Woodfill again contended that the trial court had a sua sponte duty to 

transform defense counsel’s proposed request for an instruction on the 

defendant’s subjective knowledge to an instruction reflecting the Thomas

test’s objective component. We reject the argument. The trial court was not 

required, sua sponte, to modify defense counsel’s proposed instruction to turn 

it into an instruction on the Thomas test for the objective component of 

implied malice. As Nieto Benitez establishes, because the Phillips test 

correctly states the law, a trial court has no sua sponte duty to instruct using 

the Thomas test when an instruction using the Phillips test is already being 

given. (Nieto Benitez, supra, 4 Cal.4th at p. 111.)

B. The Trial Court Did Not Err in Failing to Sua Sponte Instruct With 

Either Vehicular Manslaughter or Involuntary Manslaughter As a 

Lesser Included Offense of Murder

Woodfill next argues that the trial court erred in not instructing the 

jury on either vehicular manslaughter or involuntary manslaughter as a 

lesser included offense of murder. 

Although defense counsel did not argue in the trial court that the jury 

should be instructed on any lesser included offenses, “[a] trial court has a sua 

sponte duty to ‘instruct on a lesser offense necessarily included in the 

charged offense if there is substantial evidence the defendant is guilty only of 

the lesser.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 403-404 (Shockley).) 

However, “a defendant has no unilateral right to an instruction on an 

uncharged offense that is not necessarily included within a charged offense.” 

(People v. Yeoman (2003) 31 Cal.4th 93, 129.) 

“To determine if an offense is lesser and necessarily included in another 

offense for this purpose, we apply either the elements test or the accusatory 
11

pleading test. ‘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. 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.’ ” (Shockley, supra, 58 Cal.4th at p. 404.) “When, as here, the 

accusatory pleading incorporates the statutory definition of the charged 

offense without referring to the particular facts, a reviewing court must rely 

on the statutory elements to determine if there is a lesser included offense.” 

(People v. Robinson (2016) 63 Cal.4th 200, 207.)4 “On appeal, we 

independently review whether a trial court erroneously failed to instruct on a 

lesser included offense.” (People v. Trujeque (2015) 61 Cal.4th 227, 271.)

1. Vehicular Manslaughter

Woodfill’s first contention is that the trial court should have instructed 

on vehicular manslaughter (§§ 192, subd. (c), 191.5, subds. (a), (b)) as a lesser 

included offense of murder.5 As Woodfill acknowledges, his argument is 

4 The amended information tracks the statutory language and does not 

provide any additional factual allegations about the alleged conduct, stating 

that Woodfill “did unlawfully murder [S.G.], a human being, in violation of 

Penal Code Section 187(a).” (Capitalization omitted.) 

5 Section 191.5 sets forth two types of vehicular manslaughter while 

intoxicated: (a) gross vehicular manslaughter while intoxicated, and 

(b) vehicular manslaughter while intoxicated. “Gross vehicular 

manslaughter while intoxicated is the unlawful killing of a human being 

without malice aforethought, in the driving of a vehicle, where the driving 

was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and 

the killing was either the proximate result of the commission of an unlawful 

act, not amounting to a felony, and with gross negligence, or the proximate 

result of the commission of a lawful act that might produce death, in an 
12

foreclosed by our Supreme Court’s opinion in People v. Sanchez (2001) 

24 Cal.4th 983, 988-992 (Sanchez). Sanchez held that “gross vehicular 

manslaughter while intoxicated should not be treated as a lesser included 

offense of murder.” (Id. at p. 992.) Sanchez reached that conclusion because 

gross vehicular manslaughter while intoxicated “requires proof of additional 

elements that are not included in the offense of murder or in other forms of 

nonvehicular manslaughter.” (Ibid.) Specifically, “[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; see also People v. Hicks (2017) 4 Cal.5th 203, 209 & fn. 1 [citing 

Sanchez for the proposition that a gross vehicular manslaughter conviction 

was not a lesser included offense of murder because it “required proof of 

elements that did not need to be proved to convict defendant of murder”].) As 

case law has recognized, the reasoning of Sanchez applies equally to other 

types of vehicular manslaughter (§§ 191.5, subd. (b), 192, subd. (c)), as they 

all require proof of an element not required for murder, namely, the driving 

unlawful manner, and with gross negligence.” (§ 191.5, subd. (a).) “Vehicular 

manslaughter while intoxicated is the unlawful killing of a human being 

without malice aforethought, in the driving of a vehicle, where the driving

was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and 

the killing was either the proximate result of the commission of an unlawful 

act, not amounting to a felony, but without gross negligence, or the proximate 

result of the commission of a lawful act that might produce death, in an 

unlawful manner, but without gross negligence.” (§ 191.5, subd. (b).) 

Further, section 192, subdivision (c) sets forth three types of vehicular

manslaughter, not necessarily involving intoxication. In arguing that the 

jury should have been instructed on vehicular manslaughter as a lesser 

included offense, Woodfill does not distinguish between these different types 

of vehicular manslaughter. Instead, he refers generally to “vehicular 

manslaughter” as a lesser included offense. 
13

of a vehicle. (People v. Bettasso (2020) 49 Cal.App.5th 1050, 1057-1060;

People v. Wolfe (2018) 20 Cal.App.5th 673, 685-686 (Wolfe).)

Woodfill acknowledges that we are bound to follow our Supreme Court’s 

holding in Sanchez. (Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 455.) However, he asks us to “encourage the Supreme Court 

to consider and address the issue” he raises, which consists of a policy 

argument, including a focus on the history of the California statutes relating 

to manslaughter and murder. Respecting our role as an intermediate 

appellate court, we decline the invitation to comment any further. We find no 

error in the trial court’s failure to instruct the jury on vehicular 

manslaughter as a lesser included offense of murder.

2. Involuntary Manslaughter

Recognizing that we are precluded by Sanchez, supra, 24 Cal.4th 983, 

from concluding that the trial court erred by not instructing on vehicular 

manslaughter as a lesser included offense of murder, Woodfill’s second 

contention is that the trial court should have instructed on involuntary 

manslaughter as a lesser included offense. As we will explain, Woodfill’s 

argument is precluded by the plain statutory language of section 192, 

subdivision (b). 

Involuntary manslaughter is a killing without malice “in the

commission of an unlawful act, not amounting to a felony; or in the 

commission of a lawful act which might produce death, in an unlawful 

manner, or without due caution and circumspection.” (§ 192, subd. (b).) In 

general, “[i]nvoluntary manslaughter is a lesser included offense of murder; 

thus, a trial court must instruct the jury on involuntary manslaughter ‘[i]f 

the evidence presents a material issue of whether a killing was committed 

without malice, and if there is substantial evidence defendant committed
14

involuntary manslaughter.’ ” (People v. Munoz (2019) 31 Cal.App.5th 143, 

153-154 (Munoz).) However, the Legislature expressly stated in section 192, 

subdivision (b) that “[t]his subdivision shall not apply to acts committed in 

the driving of a vehicle.” (§ 192, subd. (b).) Therefore, “section 192, 

subdivision (b) effectively eliminates involuntary manslaughter as a lesser 

included offense of murder when ‘committed in the driving of a vehicle.’ ” 

(Munoz, at p. 154; see also People v. Ferguson (2011) 194 Cal.App.4th 1070, 

1082 [“although involuntary manslaughter is usually a lesser included 

offense of murder [citations], in the context of drunk driving it is not”].)

Woodfill acknowledges that section 192, subdivision (b) makes the 

crime of involuntary manslaughter inapplicable to a vehicular killing. 

However, he argues that when viewed from a “historical perspective,” which 

includes the development of the statutory provisions that separately 

criminalize vehicular manslaughter, the Legislature could not have intended 

to enact a statute that would result in there being no lesser included offense 

for a murder committed by the act of driving a vehicle. We understand 

Woodfill’s argument, but it is better directed to the Legislature than to us. 

The plain language of section 192, subdivision (b) excludes a killing 

committed in the driving of a vehicle from the crime of involuntary 

manslaughter. It is accordingly legally impossible for a defendant to be 

convicted of involuntary manslaughter when charged with a murder 

committed in driving a vehicle. If the Legislature were to determine that the 

plain statutory language has the undesired effect of eliminating any lesser 

included offense for murder committed in the driving of a vehicle, it is free to 

enact a statutory amendment to address the issue. 

Woodfill contends that we may “decline to follow the plain meaning of a 

statute in situations when following the plain meaning inevitably . . . would 
15

lead to absurd results that the Legislature did not intend.” (See People v. 

Broussard (1993) 5 Cal.4th 1067, 1072 [“the plain meaning of a statute 

should not be followed when to do so would lead to ‘absurd results.’ ”].) “To 

justify departing from a literal reading of a clearly worded statute, the result 

must be so unreasonable that the Legislature could not have intended it.” 

(Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 638.) Here, it does not 

lead to a necessarily absurd result to apply the plain meaning of section 192, 

subdivision (b), even if the effect is to eliminate any lesser included offense 

for murder committed in the driving of a vehicle. As one court observed in 

the context of an equal protection challenge based on the absence of a lesser 

included offense for murder committed by a vehicle, “the Legislature’s 

charging scheme is rationally related to a legitimate governmental purpose: 

to appropriately punish—and also perhaps to discourage—people from 

engaging in the highly dangerous conduct of driving under the influence.” 

(Wolfe, supra, 20 Cal.App.5th at p. 690; see also Munoz, supra, 

31 Cal.App.5th at p. 160 [in the context of a due process challenge to the lack 

of a lesser included offense, observing that “the Legislature reasonably could 

distinguish unintentional homicides committed in the driving of a vehicle 

from other unintentional homicides. Motor vehicles are a ‘leading cause of 

accidental deaths’ in this country. [Citation.] Our Supreme Court expressly 

has identified deterrence of driving under the influence of alcohol as ‘a highly 

important governmental interest.’ ”].) 

Accordingly, we follow the plain meaning of section 192, subdivision (b) 

to conclude that the trial court was not required to instruct on involuntary 

manslaughter as a lesser included offense of murder in this case. “A 

defendant is entitled to an instruction on a lesser included offense only if the 

record contains substantial evidence of the lesser crime.” (Wolfe, supra, 
16

20 Cal.App.5th at p. 687.) Because there was no substantial evidence to 

support a finding that the killing of S.G. was committed in any manner other 

than the driving of a vehicle, Woodfill’s conduct could not constitute the crime 

of involuntary manslaughter as a lesser included offense. (Id. at p. 686 [“As 

far as the crime of involuntary manslaughter, the court was prohibited from 

giving that instruction because the crime does ‘not apply to acts committed in 

the driving of a vehicle.’ (§ 192, subd. (b).)”].)

C. The Trial Court Did Not Prejudicially Err in Admitting a Photograph of 

S.G. While She Was Alive

Woodfill’s final contention is that the trial court prejudicially erred in 

admitting a photograph of S.G. while she was alive.

In a motion in limine, defense counsel requested that the trial court 

exclude from evidence any photographs depicting S.G. while alive.6 Defense 

counsel offered to stipulate to any fact the prosecutor might wish to establish 

using such a photograph. The People opposed the motion in limine, but they 

offered to allow the defense to choose between three proposed photographs of 

S.G. 

The trial court ruled that it would admit one photograph of S.G. while 

alive, stating that “one photograph is not unduly prejudicial. I’m not going to

exclude a photograph of a living individual who’s an alleged victim here of 

6 Defense counsel’s motion in limine did not cite any specific provision of 

the Evidence Code, but instead relied upon case law discussing the 

circumstances in which it is appropriate to admit a photograph of a victim 

while alive. That case law generally identifies issues of relevance (Evid. 

Code, § 350 [no discretion to admit irrelevant evidence]) and undue prejudice

(Id., § 352 [discretion to exclude evidence when the probative value is 

substantially outweighed by the probability of undue prejudice]) as arising 

when the People seek to introduce a photograph of a victim while alive. (See, 

e.g., People v. DeSantis (1992) 2 Cal.4th 1198, 1230 (DeSantis); People v. 

Poggi (1988) 45 Cal.3d 306, 322-323 (Poggi).) 
17

drunk driving.” The trial court explained, “I’ve done my fair share of murder 

trials and I’ve done my fair share of allowing a picture of a living individual 

who is the victim, because sometimes, and I’ll just give you my analysis, we 

concentrate on your client throughout the whole two weeks and not enough to 

alleged victim or victims. So I just feel that that would be probative even 

though you’ve cited case law indicating otherwise.” 

A single photograph of S.G. was displayed to the jury during the 

testimony of S.G.’s husband, who was the first trial witness. After 

establishing that S.G. left the house to go running at approximately 5:00 p.m. 

to 5:15 p.m. on August 27, 2018, the prosecutor displayed a photograph of 

S.G. and asked S.G.’s husband whether he recognized it. He confirmed, “Yes, 

that’s my wife.” 

We apply an abuse of discretion standard of review in determining 

whether the trial court erred in admitting the photograph. (People v. Parker

(2022) 13 Cal.5th 1, 43.)

Due to the volume of death penalty appeals that come before our 

Supreme Court, numerous opinions discuss the issue of whether it was error 

for a trial court to allow the admission of a photograph of the victim while 

alive. Our Supreme Court has “long advised trial courts to exercise care 

when deciding whether to admit during the guilt phase of trial photographs 

of a capital murder victim while alive, because of the risk such evidence ‘will 

merely generate sympathy for the victim[ ].’ ” (People v. Brooks (2017) 

3 Cal.5th 1, 56.) Since at least 1992, our Supreme Court has followed the 

approach of cautioning trial courts to exercise care in admitting a photograph

of a victim while alive, but nevertheless holding that a photograph of the 

victim while alive is “relevant to establish the witnesses’ ability to identify 

the victims as the people about whom they were testifying” and that “[t]he 
18

possibility that [the photograph] generated sympathy for the victims is not 

enough, by itself, to compel its exclusion if it was otherwise relevant.” 

(DeSantis, supra, 2 Cal.4th at p. 1230; see also People v. Tully (2012) 

54 Cal.4th 952, 1020 (Tully) [quoting DeSantis]; People v. Thomas (2023) 

14 Cal.5th 327, 371-372 [photographs of victims while alive “can be relevant 

‘to establish the witnesses’ ability to identify the victims as the people about 

whom they were testifying.’ ”].) 

In assessing the relevance of victim photographs while alive, older case 

law from our Supreme Court—on which Woodfill relies—takes into account 

whether the defendant offered to stipulate to any facts that the People sought 

to establish through the disputed photograph. (People v. Ramos (1982) 

30 Cal.3d 553, 577-578 [error to admit a photograph of the victim while alive 

during her father’s testimony when the defense offered to stipulate the victim 

was a human being and was alive prior to the events of the night in 

question]; Poggi, supra, 45 Cal.3d at pp. 322-323 [error to admit a photograph 

of the victim while alive “for ‘identification’ ” when the defense offered to 

stipulate to the fact that the victim was a human being, that she was alive 

before the attack, and that she had died].) However, our Supreme Court’s

more recent case law has not followed that approach, concluding that 

admission of a victim’s photograph is relevant to establish a witness’s ability 

to identify the victim, even when the defense offers to stipulate to identity.

(Tully, supra, 54 Cal.4th at p. 1020 [even though defense counsel offered to 

stipulate to identity, victim photograph was properly admitted to show 

identity of victim]; DeSantis, supra, 2 Cal.4th at p. 1230 [same].)7

7 As the issue of the admissibility of a victim photograph typically 

involves an objection made under Evidence Code section 352, our Supreme 

Court’s case law considering the admissibility of victim photographs while
19

Citing our Supreme Court’s case law, Woodfill acknowledges that a 

photograph of a victim while alive may be relevant to show that the witness 

can identify the victim as the person about whom the witness is testifying. 

However, he argues the photograph of S.G. was not relevant for that purpose 

because “[t]he prosecutor made no showing that [S.G.’s husband] needed to 

see the photograph in order to be able to be made aware of who his wife was.” 

Accordingly, Woodfill argues “[t]here was no need to use [the photograph] to 

allow [S.G.’s] husband to identify his wife.” Woodfill argues that because the 

photograph was not relevant, the trial court erred in admitting it.8

In our assessment, the relevance of the photograph is a close question. 

The People’s only argument concerning the relevance of the photograph is 

that it was admitted “so that [S.G.’s] husband could identify her for the jury.” 

However, that is not the correct inquiry under the case law. As our Supreme 

Court has explained, victim photographs are “relevant to establish the 

alive typically addresses the issue of whether the photograph was unduly 

prejudicial after discussing whether the photograph was relevant. (See, e.g., 

People v. Suff (2014) 58 Cal.4th 1013, 1072-1073.) Here, however, Woodfill 

focuses his argument only on the issue of relevance, arguing that the 

photograph should have been excluded because it had no relevance 

whatsoever, regardless of whether it was more prejudicial than any typical 

photograph of a victim while alive. We note that there is nothing unduly

prejudicial about the photograph, as it is an ordinary photograph that 

appears to have been taken as a “selfie” with a cell phone camera, depicting 

the face and upper body of a woman with a neutral expression. 

8 In arguing that the photograph was not relevant, Woodfill also points 

out that he offered to stipulate to any fact that the People sought to establish 

through the admission of the photograph. However, as we have explained, a 

defendant’s stipulation along those lines is no longer treated as dispositive on 

the issue of whether the admission of a photograph is relevant to prove a 

witness can identify the victim as the person who is the subject of the 

witness’s testimony. (Tully, supra, 54 Cal.4th at p. 1020; DeSantis, supra, 

2 Cal.4th at p. 1230.)
20

witnesses’ ability to identify the victims as the people about whom they were 

testifying.” (DeSantis, supra, 2 Cal.4th at p. 1230.) The inquiry is not 

whether the photograph is relevant so that a witness can identify the victim 

“for the jury.” Here, there is no dispute that S.G. was the person to whom 

S.G.’s husband was married, and that S.G. was the person who left their 

house for a run and did not come back. Showing S.G.’s husband a photograph 

of S.G. to identify her was not material to confirm those facts, and thus the 

photograph was not relevant “to establish the witness[’s] ability to identify 

the victim[ ] as the [person] about whom [he was] testifying.” (Ibid.)

However, even were we to conclude that the trial court erred in 

determining that the photograph was relevant, Woodfill has not met his 

burden to establish that any error in admitting the photograph was 

prejudicial. In determining whether an error in admitting a photograph of a 

victim while alive requires that the judgment be reversed, we inquire 

whether it is “reasonably probable that the outcome would have been more 

favorable to defendant had the photograph been excluded.” (DeSantis, supra, 

2 Cal.4th at p. 1231.)

Here, the photograph is a plain and unremarkable photograph 

depicting S.G. while she was alive. As such, the photograph was unlikely to 

generate any additional sympathy from the jury above and beyond the tragic 

fact of S.G.’s death and the presence of S.G.’s grieving husband on the 

witness stand. (See People v. Cowan (2010) 50 Cal.4th 401, 477 [concluding 

that the admission of a photograph showing one of the victims while alive 

was not prejudicial because “the photograph would have generated no more 

sympathy for the victims than did [the victims’] children and grandchildren 

testifying live from the witness stand”]; People v. Thompson (1988) 45 Cal.3d 

86, 115 [a photograph which was “simply a picture of the victim alive” “did 
21

not unduly prejudice the defendant in any way”]; People v. Hovey (1988) 

44 Cal.3d 543, 571 [the victim’s “photo, though perhaps ‘charming,’ was 

nonetheless an ‘ordinary’ one not likely to produce a prejudicial impact”]; 

Poggi, supra, 45 Cal.3d at p. 323 [a photograph of the victim while alive did 

not “seem likely to have appreciably intensified whatever feelings—whether 

of hostility toward defendant or sympathy toward his victim—that the jury 

may have developed in this case.”].) Moreover, the jury was shown images of 

S.G.’s body at the scene of the accident and during the autopsy. Woodfill does 

not challenge the admission of those photographs on appeal. It is unlikely 

that the ordinary photograph of S.G. while alive could have appreciably 

added to the emotional impact on the jury of the graphic photographs 

depicting the injuries that Woodfill caused S.G. to suffer. For these reasons, 

it is not reasonably probable that Woodfill would have obtained a more 

favorable result had the trial court granted his request to exclude the 

photograph of S.G. while alive.

Accordingly, we conclude that the trial court did not prejudicially err in 

admitting a photograph of S.G. while she was alive. 
22

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.