Opinion
A154474
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. LOUIS SALE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16NF005462)
Louis Sale was convicted of second degree murder and related offenses following a fatal accident that occurred while he was driving under the influence of alcohol. He was sentenced to state prison for a term of 15 years to life. He raises several challenges on appeal, contending that the evidence is insufficient to support the murder conviction, the results of a blood draw should have been suppressed, the trial court erred in admitting evidence of a prior arrest for driving under the influence, the trial court failed to clarify the meaning of implied malice for the jury, and he was prejudiced by the cumulative impact of these alleged errors. Finding no error, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2016, appellant was charged by information with murder of Vivaldo Veloso (Pen. Code, § 187, count 1); gross vehicular manslaughter while intoxicated (Veh. Code, § 191.5, subd. (a), count 2); felony driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a), count 3); felony driving with a blood-alcohol level above the legal limit causing injury (Veh. Code, § 23153, subd. (b), count 4); and misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a), count 5). The information also alleged that appellant personally inflicted great bodily injury on Veloso (§§ 1203.075, subd. (a), 12022.7), proximately caused great bodily injury to Veloso and two others while driving under the influence and with a blood alcohol level above the legal limit (Veh. Code, § 23558), and had previously been convicted of a DUI (Veh. Code, § 23540).
Undesignated statutory references are to the Penal Code.
Jury trial commenced on December 12, 2017. Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)), the evidence established the following. A. The Prosecution's Evidence
i. Appellant's Prior DUI Arrests and Conviction
Around 2:00 a.m. on September 6, 2014, Justin Lagman, an off-duty sheriff's deputy, was stopped at a red light when he noticed a white pickup truck approaching rapidly from the rear. The truck went around him using the left-turn lane and ran through the red light, shaking Lagman's car and almost hitting his driver-side mirror. After the light changed, Lagman followed the truck and saw it stop and start several times as it continued down the road while straddling both lanes of the two-lane roadway. After the truck pulled into a 7-Eleven store parking lot, Lagman called 911 to report the unsafe driving.
Officer Tyrus Moulder of the City of Oceanside Police Department located appellant at the 7-Eleven store parking lot inside a white Dodge Ram pickup truck. The interior of the vehicle smelled of stale beer. Appellant's eyes were bloodshot and watery, and his speech was slurred. He said he had consumed five beers earlier that evening. After he failed to satisfactorily perform field sobriety tests, Officer Moulder placed him under arrest. Told he was required to submit to breath or blood testing, appellant elected to take the breath test, which revealed a blood-alcohol content of .25 percent.
Appellant pleaded guilty to driving under the influence (DUI). On his plea form he indicated that he understood he could be charged with murder if someone were killed while he drove under the influence. He was placed on five years' probation. As a condition of probation, appellant was required to enroll in an enhanced nine-month first offender program and was prohibited from driving with any measurable level of alcohol or drugs in his system.
Appellant attended all six of the offender program's two-hour educational modules, along with 30 group sessions lasting one-and-a-half hours each, 32 self-help sessions, and 18 one-on-one sessions that emphasized the dangers of drinking and driving. The program's educational modules address how alcoholism and drugs can impair individuals both physically and mentally. Coursework covers the effects of alcohol on the brain. Participants were also shown a chart that explains how many drinks it takes to reach a certain blood-alcohol level. Program participants view a film called, "Drinking and Driving: The Toll and the Tears," which describes cases involving people who have been killed or injured in DUI-related crashes and shows the impact on the victims' families. The film includes the story of a driver who was convicted of murder following a DUI fatality. The film is "emotionally powerful," and the associated education materials stress that someone can be killed in a DUI crash.
While appellant completed the bulk of the offender program, including group counseling and all of the educational modules, he missed his final two individual counseling sessions for nonpayment of $205 in fees. He was discharged from the program in October 2015 for nonpayment after having been granted an extension.
On November 1, 2015, California Highway Patrol (CHP) Officer Daniel Blanco pulled over an Audi sedan that was going 75 to 80 miles per hour in a 65 mile per hour zone at about 10:30 in the morning. Appellant was driving the vehicle. The officer noticed a strong odor of alcohol and decided to conduct a DUI investigation. Appellant said he had consumed eight beers the night before. After he failed field sobriety tests, a preliminary alcohol screening test showed he had a blood-alcohol content of .110 percent. Appellant was placed under arrest and submitted to a breath test at 11:00 a.m. The results showed a .08 percent blood-alcohol content. Officer Blanco confiscated appellant's driver's license.
ii. The Fatal Accident
On April 9, 2016, at around 3:40 a.m., two CHP officers responded to reports of a collision while driving south on Highway 101 just north of San Francisco International Airport. They decided to conduct a traffic break so that the damaged cars could be safely removed from the freeway. A traffic break is accomplished by activating a patrol vehicle's emergency lights and driving in a zigzag motion, crossing all lanes of the freeway in order to corral motorists driving behind. The maneuver is designed to place as many vehicles as possible within the resulting traffic bottleneck so that their red brake lights can provide a visual warning to oncoming drivers.
The southbound freeway near the airport has five lanes of traffic and is relatively straight. The freeway is flat for well over a mile. There was a light rain that night but visibility was at least one mile. The CHP officers began the traffic break about two miles north of the roadway hazard. Vehicles amassed behind them, including several big rig trucks that served to enhance the traffic break's visibility.
The victim, Vivaldo Veloso, had been working that evening as an Uber driver and was driving home in his 2013 Honda Civic Hybrid. He was behind the traffic break in the far left lane. About one minute after completing the traffic break, CHP Officer Alfonso Hernandez heard the sound of a collision to the north. A 5,000-pound white Dodge Ram pickup truck had collided with several vehicles that were stopped for the traffic break. The pickup truck careened across the freeway lanes from left to right, sideswiping several cars before coming to a stop after hitting a semi truck. A total of nine vehicles were damaged in the accident.
Veloso's Honda was the first car hit by the pickup truck. The resulting collision was devastating and his car was totaled. Veloso suffered blunt force trauma to his head. Witnesses described the Honda as having been "squished." It was later determined that the Honda had suffered two crashes 0.3 seconds apart—the impact of the pickup truck to its left rear side, followed by an impact on the driver's side when the Honda rotated clockwise and hit the back of a Mazda sedan that was stopped in front of it. The Mazda sustained moderate to major rear end damage. The driver and a passenger in the Mazda were still suffering from back pain at the time of trial. The driver testified that he was a mile away when he saw the brake lights from the traffic stoppage. He had sufficient time to slow down and come to a gradual stop over the course of two minutes. He was stopped for about five minutes when he was hit from behind.
Jonathan Van Ness was driving for Uber on the night of the accident. He saw the traffic break ahead of him from 200 to 300 yards away. Between 40 to 60 vehicles were stopped in front of him across the freeway. As he was coming to a stop, he heard a crash followed by a screeching sound and saw several cars spinning and sliding out of control. He later saw people getting out of their cars, but did not see anyone exit the Honda. Having CPR and emergency medical response training, he went over to help. The driver's side of the Honda was damaged and inaccessible, so he entered on the passenger side. The driver was breathing but was not responsive. Firefighters extricated Veloso from the car and he was transported to Stanford Medical Center where he later died.
iii. The DUI Investigation
After the accident, appellant left his pickup truck and jogged to the side of the freeway. His truck was severely damaged and its airbags had deployed. Officer Hernandez spoke to appellant and asked for his driver's license, which was suspended. He handed Officer Hernandez a California ID card. Appellant said he was fine and did not need an ambulance.
After Officer Hernandez addressed the injured parties and helped open the freeway, he returned to where appellant was standing. He detected the smell of alcohol and began a DUI investigation. A video of appellant's roadside interaction with Officer Hernandez was played for the jury. During questioning, appellant told Officer Hernandez that he had consumed a single shot of tequila at 11:00 p.m. and had eaten chicken, artichokes, and bread. He said he was okay and was not feeling the effects of alcohol.
Officer Hernandez asked appellant to participate in several field sobriety tests, the results of which indicated he was impaired by alcohol. He then asked appellant to take a preliminary alcohol screening test. The test result reflected a blood-alcohol content of .157 percent. A second test showed a .155 percent blood-alcohol content. Given the choice of a breath or blood test, appellant elected to take a blood test, which was performed at Seton Medical Center. A blood sample drawn at 5:55 a.m. showed appellant had a blood-alcohol content of 0.159 percent.
iv. Accident Reconstruction Evidence
As an Uber driver, Veloso's car was equipped with two video cameras. Footage from the dashboard camera showed brake lights spanning the entire width of the freeway. The lights are visible more than 1,800 feet away from where the accident occurred, and that is the point where Veloso began to decelerate his vehicle.
The CHP's accident investigation team determined that appellant's pickup truck did not have any preexisting conditions that affected its operability. The truck's electronic event data recorder showed that about five seconds before the crash, appellant was driving 80 miles per hour. The posted speed limit on Highway 101 is 65 miles per hour. Approximately one second before the crash, appellant was pressing the accelerator to maintain his speed and the truck was traveling 79 miles per hour. Appellant suddenly pressed the brake pedal and turned hard to the left. The truck was traveling 66 miles per hour when it struck Veloso's Honda. The Honda was traveling two miles per hour when it was struck.
The impact of appellant's vehicle caused the Honda to lurch forward at 35 miles per hour in just 0.165 seconds. The collision represented a violent impact with an acceleration that is potentially nonsurvivable. The Honda then rotated clockwise and hit the rear of the Mazda. Appellant's truck continued to travel four seconds more before stopping. An accident reconstruction expert for the People opined that had appellant been going the posted speed limit, he would have had sufficient time to avoid the collision by braking and steering to the left to enter the center divide area.
Another prosecution expert witness opined that rain was not a contributing factor to the accident. There was no evidence to suggest that appellant was distracted before the crash, as the truck's data recorder showed he maintained consistent speed and steering. In the expert's opinion, the accident was caused by appellant's speed and his failure to recognize the hazard in time to avoid the collision. These factors are consistent with impairment due to alcohol. The road hazard was in plain sight 1,800 feet away, and a reasonable unimpaired driver would have had plenty of time to recognize the hazard and slow down, even one traveling at 80 miles per hour.
v. Interview With District Attorney Inspector
Appellant was interviewed by an inspector with the district attorney's office on May 16, 2016. A video of the interview was played for the jury. Appellant stated that on the night of the accident, he had a job dancing at a club in the Castro neighborhood of San Francisco. He consumed two lemon drop drinks. He could not have had more than three alcoholic drinks because the club only gave out three drinks. Since he had consumed alcohol, he waited before driving. He met a friend, got something to eat, and left to go home around 3:00 a.m. On the freeway he saw traffic coming to a halt. He slammed on the brakes and steered to the left but he was unable to avoid the collision. Appellant admitted to his prior DUI conviction and the November 2015 DUI arrest. He acknowledged that he had been warned by the judge and the first offender program that if he caused a fatal DUI accident the consequences would be severe. B. The Defense
The People introduced expert testimony on chemical analysis of blood-alcohol content and the effects of alcohol on the human body. The expert testified that if appellant had started drinking at 10:00 p.m. and finished at 12:30 a.m., he would have to consume the equivalent of 16.6 alcoholic drinks to measure a blood-alcohol content of .159 percent at 5:55 a.m. Had he consumed only three to four drinks during the same time period, his blood-alcohol content would have been no greater than .076 percent at 12:30 a.m. and close to zero by 3:30 a.m.
i. Appellant's Testimony
Appellant started drinking when he was 12 years old following his sister's death in a car accident. He became a father when he was 15 years old and had a second child at age 20, both with this former wife. He joined the military and served from 2002 to 2007, including two tours in Iraq. His drinking increased and he became a binge drinker. After leaving the military, he held a good job for six years but lost both his job and his marriage in 2015 due to drinking. He had only recently begun to realize the extent of his alcoholism.
Regarding his 2014 DUI arrest, appellant recalled being intoxicated and falling asleep in his truck at the 7-Eleven. He had left a bar and had driven to the store to buy more alcohol. He entered a guilty plea and initialed a plea form in which he acknowledged that "[i]f I continue to drive while under the influence of alcohol, or drugs, or both, and as a result of my driving someone is killed, I can be charged with murder." At trial, he did not recall reading the form or discussing it with his attorney.
Appellant recalled the offender program's emphasis on the dangers of alcohol and drinking and driving. As a result of the course, he tried to replace alcohol with a healthier lifestyle. He denied ever being informed that if he drove under the influence and someone was killed he could be charged with murder. He knew there would be severe consequences, but thought this meant he would serve more jail time, not be charged with murder. He failed to complete the program because he lost his job in June 2015 and could not pay the fees. He was given more time but could not come up with the money. He was told his failure to finish the program would violate his probation and he would lose his driving privileges.
Appellant moved to Northern California the month after his second DUI arrest and did not go to court because he was unable to afford a lawyer. He was living in San Jose with his former father-in-law and was taking carpentry apprenticeship classes. He had been dancing to earn money but was trying to get out of that line of work.
On the night of the accident, appellant danced at the club for three 30-minute sets at 10:30 p.m., 11:30 p.m., and 12:30 a.m. While he was performing and during his breaks he drank alcohol to enhance his performance and to help him cope with the environment. The club allowed dancers up to three free drinks. The bartender gave him large drinks containing four or five liquors mixed together. Appellant drank continuously that night. He finished his last performance at 1:00 a.m. and left the club at around 1:30 a.m.
Appellant met a friend named Angel Sandoval and they went to a restaurant. Feeling the effects of alcohol, he thought it would be wise to get something to eat. He felt he could wait out the effects until it was safe before going home. He drank only water with his food. Appellant left the restaurant around 2:40 a.m. and walked back to his truck. He sat in his vehicle for 30 to 40 minutes to further wait out the effects of the alcohol. He took two phone calls from a friend. After completing the second call, he started driving home to San Jose. It had been about two hours since his last drink and he felt fine and safe to drive. He drove for 20 minutes on the freeway at 79 miles per hour without incident until the traffic came to a halt. He slammed on the brakes and tried to avoid a collision by swerving to the left. Prior to the crash, he had been searching for his cigarettes. He believed his attention was diverted from the road. He was knocked unconscious by the airbag and woke up to someone helping him out of his truck.
Appellant thought he performed well on the field sobriety tests administered by Officer Hernandez. At the time, he was still in shock from the accident and from hitting his head on the airbag. He also was cold and tired. He lied about how much he had drunk because he was afraid and did not want to admit the extent of his alcohol use.
On cross-examination, appellant admitted he caused Veloso's death by failing to recognize the hazard in front of him, but denied this failure occurred because he was drunk. He felt like he was fine to drive and asserted he was not drunk, though he acknowledged someone with a .16 percent blood-alcohol content is under the influence. He explained he has a high tolerance for alcohol. He had felt the effects of alcohol earlier that night, and that was why he decided to get something to eat and wait before driving. Because he was on probation, he knew it was irresponsible for him to be driving at that time.
Appellant admitted that alcohol had affected his judgment in the 2014 DUI incident, acknowledging he had not been safe to drive. However, he did not think he was impaired when he was arrested in November 2015. He did not remember how many drinks he had that night, but knew it was more than three. After drinking, he had slept for six hours before driving. He acknowledged that he voluntarily drank and made the decision to drive before each DUI event. He knew when he left his home for San Francisco on the night of the instant offense that he was going to have more than one drink. He admitted that he had consumed the rough equivalent of 16 drinks that night.
ii. Witnesses' Testimony
Angel Sandoval testified that he and appellant had arranged to meet at 2:00 a.m. after they both got off work as club dancers. They went to a restaurant where appellant ate a sandwich and drank water. They finished eating at 2:25 a.m. and went to appellant's truck at around 2:45 a.m. Appellant got a call about five minutes later, followed by a longer call about five minutes after that. Sandoval left and got a cab at around 3:00 a.m. Appellant did not appear to be intoxicated. He did not have problems with his balance and his speech and actions did not suggest he was drunk.
Eric Razillard testified that he spoke with appellant around midnight or 1:00 am. the night of the accident. Appellant said he had been drinking but he did not sound drunk. Appellant called him after the accident. He sounded scared and worried but did not seem drunk. Razillard had known appellant for about four months and had seen him drunk about four to six times. Appellant would drink to the point of being unsafe to drive, but Razillard never saw him drive when he was drunk. However, on one occasion, Razillard was concerned and told appellant to sleep in his car instead of driving.
iii. Appellant's Expert Witnesses
Appellant's accident reconstruction expert Eric Rossetter testified that appellant perceived the hazard two-and-a-half seconds before impact. This perception would have occurred 281 feet before the crash. Appellant then applied the brakes aggressively to slow the vehicle from 79 to 66 miles per hour. The crash could have been avoided had he perceived the threat about eight seconds before impact.
Psychiatrist Dr. Jeffrey Weiner testified as an expert witness in the field of forensic psychiatry. He diagnosed appellant with severe alcohol use disorder. Appellant had developed a tolerance to the effects of alcohol over his years of drinking. Before the incident, he was reportedly consuming up to a fifth of vodka or tequila a day. He could consume several large drinks and still consider himself to be functioning well. This tolerance would also lead him to think that he could consume many drinks without adverse effects. Weiner opined that appellant was in denial about the extent of his drinking problem and did actually believe that he could drive safely after drinking on the night of the accident. This was an honest, but unreasonable belief. C. Jury Instructions and Closing Arguments
Among other instructions, the jury was instructed on implied malice under CALCRIM No. 520. The instruction provided in relevant part: "The defendant acted with implied malice if: one, he intentionally committed an act; two, the natural and probable consequences of the act were dangerous to human life; three, at the time he acted . . . he knew his act was dangerous to human life; and four, he deliberately acted with conscious disregard for human life."
During closing arguments, the prosecutor urged the jury to convict appellant of second degree murder, arguing he showed a conscious disregard for human life because he went to San Francisco the night of the accident knowing he was going to drive home after drinking. Appellant also knew he was drunk after having had the equivalent of 16 drinks, yet he chose to drive anyway. He had learned from his offender program education that drinking and driving could result in death. Defense counsel limited his arguments to asserting that the evidence was insufficient to support the charge of murder. D. Verdict and Sentencing
On January 24, 2018, the jury found appellant guilty of gross vehicular manslaughter while intoxicated, driving while intoxicated causing injury, driving with a blood-alcohol level above the legal limit causing injury, and driving with a suspended license. The jury did not reach a verdict on count 1, the murder charge. At the end of that day, a juror with a planned vacation was excused and was replaced the next day with the first alternate juror. The court instructed the jury to begin deliberations anew on count 1. After a day of deliberating, the jury found appellant guilty of second degree murder.
On May 4, 2018, the trial court sentenced appellant to 15 years to life for second degree murder. The court imposed concurrent sentences for driving under the influence causing injury and driving with a suspended license. Citing section 654, the court stayed sentences for vehicular manslaughter and driving with a blood-alcohol content above the legal limit. Appellant was awarded 720 days in custody credits. This appeal followed.
II. DISCUSSION
A. Sufficiency of Evidence of Implied Malice
Appellant contends that the murder conviction must be reversed because the evidence was insufficient to support a finding of implied malice, arguing there was no evidence he drove in a highly dangerous manner prior to the fatal collision. The contention lacks merit.
In reviewing the sufficiency of the evidence, we must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) It is the jury, not an appellate court, that must be convinced of the defendant's guilt beyond a reasonable doubt. (Ibid.) The appellate court may not substitute its judgment for that of the jury or reverse the judgment merely because the evidence might also support a contrary finding. (Id. at p. 577.)
" 'Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder.' " (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358.) Malice can be express or implied, and "[m]alice may be implied when a person willfully drives under the influence of alcohol." (People v. Wolfe (2018) 20 Cal.App.5th 673, 681 (Wolfe), citing People v. Watson (1981) 30 Cal.3d 290 (Watson).)
Our Supreme Court held in Watson that a homicide caused by a drunk driver may be prosecuted as second degree murder under a theory of implied malice "when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created." (Watson, supra, 30 Cal.3d at p. 298.) Stated another way, implied malice murder may be found "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.' " ' " (Id. at p. 300.) The Watson court cautioned, however, that "we neither contemplate nor encourage the routine charging of second degree murder in vehicular homicide cases." (Id. at p. 301.)
In Watson, the defendant had consumed enough alcohol to become legally intoxicated. He "had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later." (Watson, supra, 30 Cal.3d at p. 300.) Although the court presumed that the defendant was generally "aware of the hazards of driving while intoxicated," it did not suggest that this fact alone would suffice to sustain a charge of murder. Instead, the court emphasized other evidence that could support a finding of implied malice, including that the "defendant drove at highly excessive speeds through city streets, an act presenting a great risk of harm or death. Defendant nearly collided with a vehicle after running a red light; he avoided the accident only by skidding to a stop. He thereafter resumed his excessive speed before colliding with the victims' car, and then belatedly again attempted to brake his car before the collision (as evidenced by the extensive skid marks before and after impact) suggesting an actual awareness of the great risk of harm which he had created. In combination, these facts reasonably and readily support a conclusion that defendant acted wantonly and with a conscious disregard for human life." (Id. at pp. 300-301.)
Following Watson, several appellate courts have upheld convictions for murder involving fatal DUI accidents. (See Wolfe, supra, 20 Cal.App.5th at pp. 682-683 [citing cases].) In general, "these opinions 'have relied on some or all of the following factors' that were present in Watson: '(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.' " (Ibid; see People v. Talamantes (1992) 11 Cal.App.4th 968, 973.) Significantly, "nowhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder. Rather, the opinion states that the presence of those factors was sufficient in that case to support a murder conviction." (People v. Olivas (1985) 172 Cal.App.3d 984, 988 (Olivas).) In evaluating whether the evidence is sufficient to support a conviction in this context, appellate courts apply "a case-by-case approach." (Id. at p. 989.)
Appellant argues that his conviction must be reversed because the evidence did not show he had exhibited highly dangerous driving, the fourth Watson factor identified in Wolfe and Talamantes. He contends, inaccurately, that he was only driving 10 miles per hour over the freeway speed limit. He points out that he did not make any dangerous lane changes, sway within his lane, run through any red lights, or have any near misses with other vehicles prior to the accident. He contends the lack of evidence of highly dangerous driving amounts to "insufficient proof he acted with the wantonness required /2=for murder."
Appellant concedes that the other three Watson factors were proven at trial. The evidence showed he had a blood-alcohol level two times the legal limit at the time of the accident, he planned to drive home after drinking at the club, and he was well aware of the hazards of drunk driving based on his previous DUI arrests and conviction. He admits that the first offender program made him aware of the dangers of driving while impaired, including the possibility that he may kill or injure someone. He signed a plea form prior to his 2014 DUI conviction in which he acknowledged that he could be charged with murder if someone were killed while he drove under the influence. Appellant was also aware that his license had been suspended and that he was forbidden from driving with any measurable level of alcohol in his system under the terms of his probation, but he nevertheless chose to drink to intoxication and drive home on the night of the instant offense. A jury could reasonably have determined from the totality of the evidence that appellant was subjectively aware that his actions could endanger the lives of others and consciously disregarded those risks. As noted above, appellate courts recognize that there is no formula used to analyze vehicular homicide cases. (People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 698; Olivas, supra, 172 Cal.App.3d at p. 989.) The presence of these other factors alone provides sufficient support for the jury's finding of implied malice.
We also reject appellant's claim that evidence of "highly dangerous" driving must be limited to driving prior to the incident causing the fatal collision. He cites no authority for this proposition. At least one appellate court has determined that evidence of highly dangerous driving can exist contemporaneously with a fatal crash. In Wolfe, for example, the evidence supported a finding of highly dangerous driving when the inebriated defendant was unable to keep her vehicle in its lane, causing her to strike and kill a pedestrian on the side of the road. (Wolfe, supra, 20 Cal.App.5th at p. 684.)
The collision that killed Veloso occurred when appellant drove his truck into the back of the victim's stopped car at 66 miles per hour. The force of the impact crumpled Veloso's Honda and caused appellant's truck to be propelled across several lanes of traffic, striking several more vehicles before coming to a stop. Appellant had been traveling at 80 miles per hour, and he made no attempt to brake until approximately one to two seconds prior to impact. Conversely, other unimpaired motorists were able to see the road hazard from a distance of up to 1,800 feet and to slow to a stop over the span of one to two minutes. Given appellant's excessive rate of speed, his decision to drive in the middle of the night in an impaired condition, and his inability to slow his vehicle in response to the stoppage of traffic across the entire highway, the evidence is more than sufficient to establish "highly dangerous driving."
Appellant relies on Ochoa for the proposition that his actions amounted only to gross negligence and did not approach the wantonness required for implied malice. The Ochoa court determined that the evidence was sufficient to support the defendant's conviction of gross vehicular manslaughter while intoxicated on the basis that the "defendant, (a) having suffered a prior conviction for driving under the influence of alcohol, (b) having been placed on probation, (c) having attended traffic school, including an alcohol-awareness class, and (d) being fully aware of the risks of such activity, nonetheless (e) drove while highly intoxicated, (f) at high, unsafe and illegal speeds, (g) weaving in and out of adjoining lanes, (h) making abrupt and dangerous lane changes (i) without signaling, and (j) without braking to avoid colliding with his victims' vehicle." (Ochoa, supra, 6 Cal.4th at p. 1208.)
Appellant observes that the evidence in Ochoa contained "facts with some parallels to this case." We agree that the record here contains overlapping facts and evidence sufficient to convict defendant on the charge of gross vehicular manslaughter while intoxicated, a conviction he does not challenge on appeal. But the Supreme Court in Ochoa had no occasion to address whether the facts in that case could also have supported a conviction for second degree murder. (See California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043 ["It is axiomatic that cases are not authority for propositions that are not considered."].) In sum, the evidence in this case was sufficient to support the jury's verdict. B. Consent for Blood Draw
Appellant claims the court erred in denying his motion to suppress the results of his blood test because his blood was drawn without his voluntary consent. He asserts he did not give knowing consent to the blood draw because Officer Hernandez did not discuss the option of refusing the blood test and the consequences for doing so.
i. Additional Background
Pursuant to Vehicle Code section 23612, anyone who drives a motor vehicle and is lawfully arrested for allegedly driving under the influence of alcohol is deemed to have consented to chemical testing of his or her blood or breath to determine his or her blood-alcohol level. (See Veh. Code, §§ 23152 [driving under the influence], 23153 [driving under the influence and causing bodily injury to another].) Pursuant to former subdivision (a)(1)(D) of Vehicle Code section 23612, "[t]he person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person's privilege to operate a motor vehicle for a period of one year." (Italics added.)
At the hearing on the motion to suppress, Officer Hernandez testified that when he first observed appellant, he saw "objective symptoms of intoxication" and asked appellant to submit to field sobriety testing. Prior to administering a preliminary alcohol screening, Officer Hernandez admonished appellant that he could refuse the test, but if under arrest would be required to submit to either a blood or breath test. When the preliminary screening test showed a .15 percent blood-alcohol content, Officer Hernandez placed appellant under arrest and told him he was required by law to submit to either a blood or breath alcohol content test. Officer Hernandez did not, however, tell appellant that he had the right to refuse the test and accept the consequences, despite knowing that this advisement was required by the Vehicle Code. Appellant was transported to the hospital prior to booking, and while in the hospital selected the blood test option. After considering the testimony and counsels' arguments, the trial court concluded that while, "in a perfect world," Officer Hernandez would have informed appellant of the advisement in the Vehicle Code, his consent to the blood test was given voluntarily. Substantial evidence supports the trial court's determination.
ii. Analysis
"A blood draw is a search subject to the Fourth Amendment." (People v. Balov (2018) 23 Cal.App.5th 696, 700, review granted Sept. 12, 2018, S249708, petn. dism. Aug. 28, 2019 (Balov).) If a suspect voluntarily consents to having his or her blood drawn, no warrant is required. (People v. Harris (2015) 234 Cal.App.4th 671, 689.) " ' "The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, '[t]he power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence.' " ' " (Id. at p. 690.)
Balov, supra, 23 Cal.App.5th 696, is on point. Following a traffic stop and arrest on suspicion of DUI, an officer informed the defendant " 'that per California law he was required to submit to a chemical test, either a breath or a blood test.' " (Id. at p. 699.) The officer did not inform the defendant of the statutory consequences of refusing testing. The defendant chose a blood test. (Ibid.) In concluding his consent was voluntary, the appellate court reasoned that "by the act of driving on California's roads, [the defendant] accepted the condition of implied, advance consent [to blood or breath testing] if lawfully arrested for drunk driving." (Id. at p. 702.) Although that advance consent could have been withdrawn at the time of arrest had the defendant refused testing, his consent after arrest reaffirmed the implied consent. (Id. at p. 703.)
"The totality of the circumstances that must be considered in determining if consent is voluntary includes not only advance consent, but the driver's conduct at the time of arrest and the circumstances surrounding the testing. (Balov, supra, 23 Cal.App.5th at p. 702). The Balov court found no evidence that the officer intended to deceive the defendant by providing an incomplete admonition. It reasoned that "failure to communicate the consequences of refusing a chemical test did not make [the officer's] statement any more or less coercive than if the information had been provided" because in "neither case is the driver advised of his or her right to refuse to test altogether." (Id. at p. 704.)
The totality of the circumstances in this case similarly support a finding of voluntary consent. Appellant was given the choice of a blood or breath test and he chose the blood test. He affirmatively provided consent for the blood draw, suggesting active and voluntary consent. The evidence indicated he was coherent, which also supports voluntariness. At no point before or after providing his consent to the blood draw did he withdraw his consent. The officer did not threaten him with force or state that a test would be compelled, and appellant did not resist providing the sample to medical personnel. Accordingly, substantial evidence supports the trial court's finding that appellant freely consented to the blood draw, thus vitiating any need for a warrant.
Appellant was also on probation subject to a supervisory condition that he submit to chemical testing if arrested for a DUI offense. Appellant therefore had no legal right to refuse testing. (See People v. Cruz (2019) 34 Cal.App.5th 764, 769-771.) Although Officer Hernandez was not aware of appellant's probationary status at the time the blood samples were drawn for testing at 5:55 a.m., Officer Hernandez discovered that appellant was on probation at 8:00 a.m. that same morning. The Attorney General contends that the blood draw evidence would have been admissible under the doctrine of inevitable discovery. (People v. Robles (2000) 23 Cal.4th 789, 800.) While the argument is persuasive, because it was not raised below we do not consider it here.
Appellant's reliance on People v. Ling (2017) 15 Cal.App.5th Supp. 1 and People v. Mason (2016) 8 Cal.App.5th Supp. 11 is unavailing. Neither opinion had the benefit of considering the Balov court's reasoning. (See Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 782, fn. 9 ["[A]lthough decisions of the appellate department have persuasive value, they are 'of debatable strength as precedents,' and 'are not, of course, binding on . . . the higher reviewing courts.' "].) Furthermore, the defendant in Ling was taken to a CHP station where the only test available was a blood test. He allowed the blood draw to occur, but never affirmatively agreed to any type of testing. (Ling, at pp. 6, 8.) In Mason, the defendant was handcuffed and taken to a secure law enforcement facility where she was told " 'she was required to give' " a blood or breath sample. (Mason, at pp. 16-17.) In contrast, appellant here affirmatively agreed to the blood draw and gave his consent in a hospital, which is a less coercive environment than the law enforcement facilities at issue in Ling and Mason. We find those cases distinguishable.
Given the totality of the circumstances, we conclude appellant's consent justified the warrantless blood draw. In light of our conclusion, we deem it unnecessary to reach the parties' other arguments. C. Admission of 2015 DUI Arrest
i. Additional Background
Before trial, the prosecutor moved in limine to admit evidence related to appellant's prior DUI arrests, his conviction, and his offender program attendance and course materials. The prosecutor argued that "the prior conduct of drinking and driving, primarily, and the knowledge that driving a car can be a potentially dangerous activity" was relevant to the trial. Appellant conceded that his 2014 DUI conviction and his participation in alcohol awareness classes was admissible. However, he opposed the prosecutor's motion to admit evidence about his driving when he was arrested for his second DUI in November 2015. The trial court overruled the objection, concluding his conduct in the previous arrest was admissible to prove his awareness of the risks of driving while intoxicated.
The trial court later instructed the jury that appellant's prior uncharged behavior could be used in deciding whether he knew at the time he acted that his act was dangerous to human life, whether he deliberately acted with conscious disregard for human life, and whether his alleged actions were not the result of mistake or accident.
ii. Analysis
Appellant asserts the trial court erred when it admitted evidence of the details underlying his November 2015 DUI arrest because the evidence was highly prejudicial. He contends that the evidence of his November 2015 arrest "had no probative value to prove implied malice" and was more prejudicial than probative. We disagree.
Evidence that a defendant has committed crimes other than those currently charged is not admissible to show bad character or predisposition to criminality. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admitted to prove some material fact at issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and/or absence of mistake or accident. (Evid. Code, § 1101, subds. (a) & (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt); People v. Gray (2005) 37 Cal.4th 168, 202.) The trial court's determination of admissibility under section 1101, subdivision (b) is reviewed for an abuse of discretion. (Gray, at p. 202.)
"[T]he admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact (i.e., probative value); and (3) the existence of any rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other section 352 concern)." (People v. Hendrix (2013) 214 Cal.App.4th 216, 238.) Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury
"Trial courts enjoy ' "broad discretion" ' in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court's exercise of discretion 'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) Evidence may not be excluded under section 352 unless the probative value is " 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice" or some other Evidence Code section 352 concern. (Holford, at p. 167.)
"A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. [Citation.] 'Undue prejudice' refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' " ' " (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
Appellant was charged with murder under an implied malice theory. To prove the murder charge, the prosecutor was required to show that, when appellant intentionally committed an act that was dangerous to human life, he "knew [his] . . . act . . . was dangerous to human life [¶] . . . [¶] [and he] deliberately . . . [acted] with conscious disregard for human . . . life." (CALCRIM No. 520.) Evidence of prior drunk driving arrests and convictions, earlier warnings appellant received, and information imparted to him through drunk driving offender programs, are probative of appellant's subjective knowledge of the risks associated with driving under the influence and his intent to act in conscious disregard of the danger to others. (See People v. Ortiz (2003) 109 Cal.App.4th 104, 112-116 [discussing appellate decisions affirming convictions for second degree vehicular murder in which evidence of prior uncharged driving misconduct had been admitted to prove the defendants' knowledge and intent].)
Here, evidence of appellant's 2015 DUI arrest was relevant to establish that appellant knew the risks of driving under the influence and willfully disregarded the danger to others. In particular, the second arrest—which came within a month of his discharge from the first offender program—showed that he persisted in this potentially deadly behavior despite what he had learned and the warnings he had received following his first DUI conviction. The 2015 arrest was also probative to show that appellant knew his license had been suspended following this incident, and despite this legal impairment chose to drink the equivalent of 16 alcoholic beverages and drive home. In short, the prior arrest was relevant to show a conscious disregard for human life.
Furthermore, the evidence was not unduly prejudicial. Given that no one was harmed in connection with the November 2015 arrest, the evidence was no more likely to arouse emotional bias than the charged offenses which resulted in the death of Veloso and injury to two others. (Ewoldt, supra, 7 Cal.4th at p. 405.) We cannot conclude the trial court exceeded the bounds of reason in concluding the evidence of the arrest was more probative than prejudicial.
Any error in admitting the 2015 DUI arrest would in any event be harmless. Substantial evidence was presented regarding appellant's 2014 DUI conviction, the warning alerting him that he could face a murder charge should he commit a fatal DUI, appellant's predrinking intent to consume alcohol and drive home from the club, his intoxication at two times the legal limit, driving with a suspended license, and his excessive speeding and failure to slow down and stop for a CHP traffic break. Based on the totality of the evidence supporting a finding of implied malice, we conclude it is not reasonably probable that appellant would have obtained a more favorable result had the challenged evidence been excluded. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Trujeque (2015) 61 Cal.4th 227, 280 [Watson review applies to Evid. Code, § 352 errors].) D. Jury Question on Implied Malice
Appellant next contends that the trial court erred in failing to adequately answer the jury's request for clarification of the meaning of implied malice. " 'An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.' [Citation.] However, '[w]e review de novo the legal accuracy of any supplemental instructions provided.' " (People v. Fleming (2018) 27 Cal.App.5th 754, 765 (Fleming).)
i. Additional Background
The jury began deliberating at 3:55 p.m. on January 22, 2018. After deliberating the entire following day, at 4:20 p.m. the jury asked: "Could we be provided with a definition and elaboration of the term 'conscious disregard' for human life . . . ." Defense counsel requested that the trial court provide the jury with language from Olivas, supra, 172 Cal.App.3d, which describes the distinction between the mental state requirements for implied malice (conscious indifference to human life) and gross negligence (conscious indifference to the consequences); see Ochoa, supra, 6 Cal.4th at p. 1204.) The court declined to do so, choosing to limit its answer to the specific question posed by the jury regarding implied malice.
The trial court responded in writing by first repeating the definition of implied malice from CALCRIM No. 520. The court then added that one way the phrase "conscious disregard for human life" has been described is "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed." The court declined appellant's invitation to include a contrasting description of the mental state for gross negligence phrased as "I don't care what happens." (See Olivas, supra, 172 Cal.App.3d at p. 988.) Appellant claims in omitting the requested language, the court "removed an essential part of the explanation."
ii. Analysis
Section 1138 provides that "[a]fter the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
" 'The court has a primary duty to help the jury understand the legal principles it is asked to apply.' [Citation.] During jury deliberations 'when the jury "desire[s] to be informed on any point of law arising in the case . . . the information required must be given." ' [Citations.] 'However, "[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." ' [Citation.] Although the trial court need not always elaborate on the standard instructions, the trial court nevertheless has 'a " 'mandatory' duty to clear up any instructional confusion expressed by the jury." ' " (Fleming, supra, 27 Cal.App.5th at p. 766.)
Appellant contends that the trial court's response was improper because "it was useless to provide the jury with the very same instruction it did not understand." However, a trial court is not required to give amplifying or clarifying instructions for terms that are " ' " 'commonly understood by those familiar with the English language.' [Citation.]" [Citation.]' [Citation.] Only where a term used in an instruction has a specific or technical meaning peculiar to the law is a further explanatory instruction necessary." (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318.) As several courts have found, the phrase "deliberately . . . act[ed] with conscious disregard" is "straightforward" (see People v. Dellinger (1989) 49 Cal.3d 1212, 1221; People v. Nieto Benitez (1992) 4 Cal.4th 91, 104), and appellant does not suggest its legal meaning in the context of CALCRIM No. 520 differs from its everyday meaning. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1017 ["[T]he trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.' "].)
Here, the trial court directed the jury to the applicable CALCRIM No. 520 instruction, and then specifically addressed the jury's question about "conscious disregard for human life" by explaining that it has been described as "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed." This clarifying statement was legally accurate. (See People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092.) Evidently, this clarification served its purpose because the jury asked no further questions.
Appellant also contends that the court erred in failing to read the entire explanation in Olivas, supra, 172 Cal.App.3d 984 concerning the differing mental state requirements for finding implied malice and gross negligence. There was no need to do so. The jury had already been instructed on gross negligence in CALCRIM No. 590, and had expressed no confusion as to that definition. And as appellant acknowledges, the jury had already reached verdicts on all other counts, including the gross vehicular manslaughter count. We do not fault the trial court for failing to give the jury additional information it did not ask for or need. Accordingly, we find no error.
E. Cumulative Prejudice
As we have found no prejudicial error in this case, appellant's claim of cumulative error necessarily fails. (People v. Hensley (2014) 59 Cal.4th 788, 818; People v. Griffin (2004) 33 Cal.4th 536, 600, disapproved on another ground as stated in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32. [when there are no errors "to 'cumulate,' " a defendant's assertion of cumulative error "is clearly without merit"].)
DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P.J. /s/_________
Banke, J.