People v. Madrigal

Full title: THE PEOPLE, Plaintiff and Respondent, v. EDGAR TAPIA MADRIGAL, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jun 27, 2018

No. F073317 (Cal. Ct. App. Jun. 27, 2018)

Opinion

F073317

06-27-2018

THE PEOPLE, Plaintiff and Respondent, v. EDGAR TAPIA MADRIGAL, Defendant and Appellant.

Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. No. CRM025520)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant/defendant Edgar Tapia Madrigal, who had a history of driving under the influence and crashing his vehicle, drove into an intersection near Atwater while intoxicated and going in excess of 85 miles an hour. At that moment, Matthew Frisk was driving through the intersection. Defendant crashed into the driver's side of Frisk's vehicle. Defendant hit Frisk's car with such speed and force that Frisk's head and neck were "screwed off" at the spine. The force bent the axle of Frisk's car and left gouge marks in the pavement as Frisk's car went into a spin. Frisk died at the scene from multiple blunt force trauma and internal injuries.

Defendant was charged with count 1, second degree murder (Pen. Code, § 187, subd. (a));¹ count 2, gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); and count 3, misdemeanor driving on a license suspended for driving under the influence (Veh. Code, § 14601.2, subd. (a)).

1 All further statutory citations are to the Penal Code unless otherwise indicated.

After a jury trial, defendant was convicted of all charges. Defendant was sentenced to 15 years to life for count 1, second degree murder. The court imposed a concurrent term of six months for count 3, and stayed the term for count 2.

On appeal, defendant argues the court erroneously instructed the jury with the pattern instruction on causation, and argues the instruction prevented the jury from considering whether Frisk was contributorily negligent because he purportedly ran or rolled through the stop sign at the intersection just moments before the fatal collision.

Defendant also contends the court abused its discretion when it excluded evidence that there was some marijuana in Frisk's system at the time of his death, and asserts such evidence would have supported his causation theory that Frisk ran or rolled through the stop sign at the intersection.

Finally, defendant contends the court should have allowed a defense expert to testify that defendant allegedly suffered from a mental disorder resulting from his voluntary intoxication, which prevented him from committing the offense with malice or forming the requisite intent. We affirm.

FACTS

Around 2:00 p.m. on Sunday, November 18, 2012, Mathew Frisk drove to his mother's residence in Atwater. He asked if she could watch his son while he ran errands. She agreed, and Frisk left in his silver/gray Nissan.

A few minutes later, Frisk's vehicle collided with a speeding green Honda driven by defendant. Frisk suffered massive injuries and died at the scene.

We will review the scene of the collision, the witnesses' observations, and the expert testimony about the fatal collision and how Frisk died.

The intersection

The fatal collision occurred at the intersection of Winton Way and Gertrude Avenue. Winton Way is a north/south road, with two 12-foot lanes in each direction. At the intersection of Gertrude Avenue, there is a 12-foot left-turn lane in each direction, to allow the driver to turn east or west from Winton Way to Gertrude Avenue.

Gertrude Avenue is an east/west road with one 12-foot lane in each direction. The east side of Gertrude Avenue at the intersection of Winton Way is slightly offset to the south, so the intersection is not completely square. A driver traveling west on Gertrude Avenue will cross the intersection by going "a little bit north."

The speed limit on Winton Way is 40 miles per hour, and there is no stop sign at the intersection of Gertrude Avenue.

The speed limit on Gertrude Avenue is 35 miles per hour. There is a stop sign and the word "STOP" painted on the pavement in front of the limit line on Gertrude Avenue in both directions. A car traveling on Winton Way has the right-of-way through the intersection.

The fatal collision

There were witnesses to the fatal collision who saw the vehicles later associated with defendant and Frisk.

Willis Adams was standing outside a church on Winton Way. He saw defendant's green car driving "erratic[ally]" on Winton Way, and "fly by" the church at a high rate of speed as it headed to the intersection at Gertrude Avenue.

Monica Gomez was driving north on Winton Way with her mother, Ellen Perez. Gomez slowed to make a left turn at the intersection of Gertrude Avenue.

Gomez testified that defendant's green Honda was behind her on Winton Way. The green Honda was traveling in the right-side lane and going fast, well beyond the marked speed limit of 40 miles per hour. Gomez testified the green Honda was travelling at "maybe about 75, 80" miles an hour; she might have told an investigating officer that it was going closer to 90 to 100 miles an hour.

Perez, Gomez's mother, testified she noticed defendant's green car because it "zoomed by us really, really fast, and you could just see how fast it was going" on Winton Way.

As defendant was speeding north on Winton Way, Frisk was driving westbound on Gertrude Avenue. At some point, Frisk entered the intersection and defendant's car slammed into the driver's door of Frisk's car.²

2 At trial, Gomez and Perez testified that Frisk's silver/gray vehicle was traveling southbound on Winton Way as the green car was speeding northbound on the same road. California Highway Patrol (CHP) Officer Woods spoke to Gomez and Perez at the scene, however, and testified they told him they "couldn't see where the gray car came from that day."
As we will explain below, Officer Frost, who investigated the scene, and Daniel Haas, the prosecution's accident reconstruction expert, testified that it was not physically possible for Frisk's car to have been traveling southbound at the time of the collision, and that Frisk had been traveling westbound on Gertrude Avenue.

Gomez and Perez testified they saw the front end of defendant's Honda hit the driver's side of Frisk's car. Frisk's car went out of control and spun around three or four times.

Adams, who was still at the church, heard a loud crash and realized that the speeding green car had collided with another car. Adams ran to the intersection and there was smoke coming from both vehicles. Defendant was slumped over in the driver's seat of the green car. The green car's windshield and front end had major damage.

Christopher Sansom, an EMT who lived on Winton Way, did not see the collision but went to the scene to help. Sansom approached the green car and spoke to defendant, who was sitting in the driver's seat. Defendant was agitated and trying to get out of his seatbelt. Defendant's car started to smoke and Sansom helped him get out.

Frisk's death at the scene

At 2:04 p.m., CHP Officer Miller received the dispatch about the collision. She arrived at the scene at 2:09 p.m. The paramedics were already there.

Defendant's Honda had stopped in the number two lane of northbound Winton Way, just north of Gertrude Avenue, and it was blocking traffic. Defendant's car had significant damage to the front end and the hood was open.

Frisk was the driver and sole occupant of the silver/gray Nissan. Officer Miller testified Frisk was still in his car and breathing when she arrived.

Frisk's Nissan had stopped on the west shoulder of Winton Way, just north of Gertrude Avenue, and it was facing east. Frisk's car had significant damage to the driver's side door. There was a "severe deep intrusion" into the front and rear driver's side doors of Frisk's car. The damage was so severe that the paramedics had to use extrication tools to remove Frisk from the driver's seat.

Once the paramedics removed Frisk from the car, his condition deteriorated rapidly. Officer Miller watched as the paramedics engaged in lengthy and vigorous efforts to revive Frisk.

At 2:44 p.m., Frisk was pronounced dead at the scene by the paramedics.

The fatal injuries

The pathologist testified Frisk suffered "severe fatal injuries" and the cause of death was multiple blunt force injuries from the collision. Frisk's primary injuries were to his head and neck. "Essentially, his head ... kind of screwed off at the spine. It was a rotation such that his skull was separated from his spine, which also lacerated his brainstem." These were fatal injuries and not survivable.

Frisk also suffered other severe injuries including internal bleeding in his chest cavities and abdomen.

Frisk's injuries, including the rotation of his head, were consistent with being in the driver's seat and another car hitting the driver's side. "[T]he human body will move to the point of impact. There's no way to stop that, and then the body is going to move to that point at the same speed, whatever speed they're moving at." Frisk's head had rotated in the direction of the impact and it occurred "at a very fast speed."

The pathologist testified the vehicle that hit Frisk's car had been traveling so fast that it caused Frisk's body "to move in that direction at a very fast speed, and then collide with the blunt force that hits him. So those parts of his body are the most likely to sustain injuries despite there's an air bag or not," consistent with the broken pelvis, the rotation of his head, and chest injuries.

Defendant's intoxication

Defendant was the driver and sole occupant of the green Honda. When Officer Miller arrived at the scene, defendant was sitting on the side of the road and the paramedics were treating him. Miller spoke to defendant, and he gave his name, date of birth, and residence. Defendant admitted he was the driver and had been in the collision. Defendant had a bloody nose.

Officer Miller testified that defendant was loud, uncooperative, and slurring his words. Defendant appeared intoxicated and the odor of alcohol from his breath was "very, very strong. His eyes were very, very red, and it looked like he had been crying also because he was probably in a lot of pain."

Defendant was "very combative," and he would not allow the paramedics to treat him. Miller advised defendant that the paramedics had to evaluate him because they did not know how bad his injuries were, and they would place him in restraints if he did not cooperate. The paramedic finally had to restrain defendant to treat him.

Defendant's blood-alcohol levels

At 2:37 p.m., Officer Miller performed a preliminary alcohol screening (PAS) breath test on defendant while he was still at the scene and restrained on a backboard. Defendant initially refused to breath into the device. Officer Miller used "a manual button" on the device "where we can just trap a small amount of air," and obtained a sample. It showed a blood-alcohol content of 0.35 percent.

Officer Miller immediately placed defendant under arrest for felony driving under the influence.

Defendant was taken to the hospital for further treatment. A nurse in the emergency room advised Miller that defendant spontaneously said he had ingested "alcohol and marijuana earlier that day."

A blood test taken when defendant arrived at the emergency room showed that defendant's blood-alcohol level was 0.31 percent, and there was marijuana in his system.

At 4:32 p.m., defendant had a forensic blood draw taken at the hospital. Jillian Evans, a senior criminalist at the Department of Justice, later analyzed the sample, and determined that defendant's blood-alcohol level was 0.23 percent, nearly three times the legal limit.

Evans testified that an average person eliminates alcohol from his or her body at a constant rate of 0.02 percent per hour. Evans did not know "exactly why there [was] ... a difference between all three results" from defendant's blood-alcohol tests after the collision. Evans testified it was "a reasonable possibility that a sample could be diluted ... from an IV" when defendant was treated after the collision. She had not done any research or considered the issue prior to the prosecutor asking about it for this case.

Evans testified that a 0.23 percent blood-alcohol level equates seven to eight drinks for a 130-pound male. Based on the 0.23 percent result at 4:30 p.m., Evans testified that defendant's blood-alcohol level would have been 0.289 percent at 2:00 p.m., the approximate time of the collision. The legal limit in California is 0.08 percent.

THE EVIDENCE AT THE COLLISION SCENE

California High Patrol Officers Miller, Woods, and Frost testified about the position and condition of both vehicles, and other evidence at the scene of the collision.

Defendant's car had significant front end damage. Frisk's car had significant impact to the driver's side door.

Officer Miller testified there was "a lot of debris" left in the roadway from the collision, including vehicle parts, glass, and fluid. There was "a very obvious" and "lengthy" fluid trail flowing from defendant's Honda. The fluid trail had "a beginning and an end where the vehicle's point of rest is, and there's no deviation from ... the trail of the vehicle that corresponds with that fluid trail." The fluid trail went "from the approximate location of impact that came from the [defendant's] Honda and traveled all of the way up to the Honda's location of rest in the No. 2 lane northbound Winton Way just north of Gertrude Avenue."

Officer Frost testified that based on the physical evidence, vehicle damage, debris field, and tire friction marks, the point of impact for the two cars was within the intersection of Winton Way and Gertrude Avenue.

"[Defendant] was traveling northbound in the No. 2 lane of Winton Way. Mr. Frisk was entering the intersection on Gertrude Avenue, and ... the initial impact occurred within the intersection .... Mr. Frisk's vehicle spun out of control, came to rest colliding with, I believe it was a post and a

concrete vault, PG&E vault, came to rest facing in an easterly direction along the west roadway edge."³

3 Officer Frost knew that two witnesses - Gomez and Perez - reported that Frisk's car had been traveling southbound on Winton Way, but testified that was "[n]ot at all possible. It's physically not possible at all," based on the skid and gouge marks, debris field, fluid trail, and where the two cars stopped after the collision.

When defendant was going north on Winton Way, he swerved to his left. Frisk left the stop sign at Gertrude Avenue, entered the intersection, and the collision occurred in the intersection.

Officer Frost testified that someone at the stop sign on Gertrude Avenue could have seen an oncoming car on Winton Way, depending on the speed. "Because if they're further down the road, he may not be able to see him from that stop sign. There is a large fence along this line here ... so I can't say for sure."

There were no skid marks to correspond to the position of Frisk's vehicle on Gertrude Avenue, and nothing to indicate that Frisk "peeled out" into the intersection or braked. Officer Frost testified he had no way to know whether Frisk stopped at the stop sign on Gertrude Avenue.⁴

4 As we will explain in issue II, post, defendant relied on this evidence to argue that Frisk was responsible for the fatal collision because he ran or rolled through the stop sign.

Officer Frost testified there were skid marks from defendant's car before it entered the intersection. These marks were from either "[b]raking or taking evasive action. So he was swerving from this point," and his tires were losing traction. Defendant was "taking evasive action. If you swerve to the left, your tires will lose traction as well."

Officer Frost further explained:

"[W]e determined the point of impact or the area of impact was within the intersection .... These are tire friction marks leading up to that point of impact. There's a fluid trail indicating the path the vehicle had taken following the impact. These gouge marks ... we later determined were from a rear cross member of Mr. Frisk's vehicle that had crushed together

in a V formation which dug into the pavement, and ... as it did so, the vehicle spun around, and that's how it made these long arcs here."

Officer Frost testified the nature of the damage to both cars indicated that "speed was definitely a factor" and it was "[a]bsolutely" a collision where high speeds were involved. It was "very apparent" the two cars "collided at a T," and the front end of defendant's car hit the driver's side of Frisk's car.

Officer Frost testified the depth of the gouge marks into the pavement from the bottom of Frisk's car also indicated there had been a "significant" side impact into Frisk's car "at a significant speed." Defendant's car hit Frisk's vehicle with such force that the rear axle on Frisk's car was crushed toward the opposite side, and it caused the axle "to V down at an angle" and it "dug into the pavement." The crushed axle on Frisk's car made very deep gouge marks in the roadway's pavement as it went into a spin, and the marks extended from the point of impact across Winton Way to where Frisk's car had stopped.

There were skid marks from defendant's car that were "coming off at an angle." Officer Frost believed defendant's car had been in the number two (right) lane on Winton Way, "when it began to take evasive action and swerve to the left." The lengthy fluid trail indicated defendant's car "had a decent amount of speed at the point of impact which carried it from the intersection all of the way to its point of rest ...." The tire friction marks from defendant's car indicated that defendant "had taken some sort of evasive action prior to entering this intersection, and that he was traveling at a significant speed."

The impact point between the two cars was in the intersection, "where the skid marks end, the first indication of any gouge marks were, and that the vehicle fluid trail begins, as well as the debris field."

Statements by defendant's father

After the collision, defendant's vehicle was moved to a tow yard and later released to defendant's father, Miguel Tapia. However, the officers decided they needed to inspect the vehicle and asked Tapia to sign a release so they could take possession and examine it.

On November 21, 2012, Tapia met with officers from the California Highway Patrol and signed the release for the vehicle. The officers asked Tapia about defendant's drinking. At trial, the officers testified that Tapia said defendant had a drinking problem and started to drink and use drugs in high school. When defendant got a job, Tapia drove him to work so he would not lose his job. Tapia later allowed defendant to drive to work but took away defendant's keys at the end of each day.

The officers testified that Tapia said defendant had been involved in a traffic collision while driving under the influence in Oregon. He was seriously injured and hospitalized, and his license was suspended.

Tapia said defendant had admitted to him at least once that he had been driving drunk. On a few occasions, Tapia had "casual conversations" with defendant about the dangers of drinking and driving, and had told him not to do it.

Tapia told the officers that on November 17, 2012, the day before the collision, he was going to leave for Los Angeles. As usual, he asked defendant for the car keys after he returned from work. Tapia said he "specifically told [defendant] not to drive his vehicle" while he was out of town. Tapia knew defendant had problems with driving under the influence and he did not want defendant to drive while he was gone. Tapia also told defendant "not to drink any alcohol or use any drugs and not to invite anybody home." Tapia said defendant became angry and told him to " '[s]hut the f[**]k up.' "

Tapia said his wife wanted him to take the car keys with him to Los Angeles. Tapia thought that defendant could possibly find a way to "hot wire" his cars (the green Honda and a van) even if he took the keys. Instead, Tapia took "great lengths" to hide the keys inside his locked bedroom before he left for Los Angeles.

The officers testified that Tapia said when he returned from Los Angeles, he discovered his locked bedroom door had been broken into and the car keys were gone. Tapia looked in defendant's bedroom and found several 24-ounce beer cans that were empty and one that was partially full. Tapia's van was still at the house, but it had been hotwired and driven until it was out of fuel.⁵

5 Tapia testified at trial and denied that he took the car keys away from defendant when defendant arrived home from work, that he locked the keys in his bedroom before he left for Los Angeles, or that he made these statements to the officers after the fatal collision in this case. Tapia also denied that he previously made such statements under oath in court. Tapia testified that before he went to Los Angeles, he told defendant to stay home and not to drive, because Tapia was afraid the house would be burglarized while he was gone. Tapia denied that defendant cursed him in response.

EVIDENCE ABOUT DEFENDANT'S PRIOR COLLISIONS

The prosecution introduced evidence that defendant had been in previous collisions when he was intoxicated, which occurred when he lived in Oregon.

2009 incident in Oregon

Around 12:30 a.m. on November 9, 2009, Benjamin Delamotte was in his car in the parking lot of Roseburg News Review in Oregon. He was waiting with other independent contractors to pick up newspapers for his delivery route. He heard "a loud revving of an engine ... and then ... brakes being applied...." Delamotte and several other delivery people got out of their cars to investigate. Delamotte saw a white Mustang parked in the middle of the road. The vehicle was damaged and appeared that it would not be drivable.

Delamotte testified that one of the delivery people, Kevin, approached the white Mustang and asked the driver if he was okay. Defendant was the driver and sole occupant. Kevin took out his cell phone and said he was going to call 911. Delamotte testified defendant "was not happy about it" and told Kevin that everything was all right; he did not need to make the call. Kevin continued to make the call, and defendant stepped out of the car.

Delamotte testified that as soon as defendant got out of the car, "right off the bat you could tell" he was under the influence of alcohol, "from the way he was walking, how he was talking, his demeanor, his eyes, everything."⁶

6 At trial, defendant's father testified that he was separated from defendant's mother, and defendant lived with his mother in Oregon for period of time.

Delamotte testified that defendant tried to take Kevin's cell phone from his possession. Defendant acted "kind of nonchalantly," like it was "not a big deal." Defendant was not aggressive, but "[t]here was a little bit of a struggle." Defendant tried to reach out and grab the phone but was not successful. Defendant was holding a beer bottle, and tried to hide it in a bush before the police arrived.

Roseburg Police Officer Young responded to the scene, and testified defendant's Mustang had been damaged on the front driver's side. Defendant was not injured, but his speech was slurred, his eyes were bloodshot and watery, and he appeared intoxicated. In response to Young's questions, defendant said he had been drinking part of a 40-ounce beer. Young found a partially-full beer can hidden in the bushes. Defendant failed field sobriety tests and "looked pretty drunk."

According to an Intoxilyzer machine test, defendant's blood-alcohol level was 0.12 percent. The legal limit in Oregon is 0.08 percent.

2011 incident in Oregon

The prosecution introduced evidence about a second incident in Oregon. Around 10:00 p.m. on November 20, 2011, paramedic Timothy Richmond was driving an ambulance on Interstate 5 in Douglas County in Oregon. Richmond was driving between 65 and 70 miles per hour. He noticed a vehicle behind him that drifted over the fog line on the left, kicked up dust as it went close to the concrete center divider, then crossed back into the traffic lanes. The vehicle started to tailgate the ambulance and stayed on its bumper, even though there was no traffic and it could have easily passed the ambulance in the other traffic lane. Richmond called the police to notify them.

Oregon State Police Trooper Feland responded to Richmond's call about a reckless driver. As Feland merged onto the freeway, he saw a white Ford Expedition with Oregon license plates. It was going about 75 miles an hour, which was 10 miles over the speed limit. The Ford was just ahead of the ambulance. Feland followed the Ford as the ambulance moved out of the away.

Richmond testified he moved his ambulance to the right (slow) lane, and the car "immediately" passed him, just as the squad car merged onto the freeway. Richmond watched as the vehicle drifted right, abruptly "overcorrected and went straight into the center divider, and then [it] immediately started summersaulting down the highway almost all of the way to [the next exit], so it rolled four to five times approximately" sideways.

Trooper Feland testified the Ford threw off red sparks when it swerved into the center barrier. The vehicle rolled over about four times. Feland noticed the vehicle's brake lights had been flashing, indicating that the driver was tapping on the brakes with a little bit of force.

Trooper Feland approached the vehicle and testified defendant was sitting in the driver's seat. There were no other occupants. He was still wearing his seat belt. Defendant had bloodshot, watery eyes, and his eyelids were "droopy." Feland could "smell a strong odor of alcoholic beverage coming from the vehicle." The paramedics arrived and had to use extrication equipment to remove defendant from the vehicle.

Defendant was initially conscious when Trooper Feland approached the Ford, but he was unconscious when removed from the vehicle. He was taken to the hospital for treatment.⁷ A blood draw at the hospital revealed that his blood-alcohol level was 0.31 percent, more than three times the legal limit in Oregon.

7 At trial, defendant's father testified that defendant was seriously injured in this accident, but there was no direct evidence of defendant's alleged injuries.

It was stipulated that at the time of the instant trial, defendant still had a pending open case for the 2011 incident in Oregon and there was a warrant for defendant's arrest in that matter.

THE PROSECUTION'S EXPERT

Daniel Haas, a senior transportation engineer on the CHP's Multidisciplinary Accident Investigation Team (MAIT), testified as the prosecution's expert about the fatal collision in this case. He examined the physical evidence, the two vehicles, the skid and gouge marks on the roadway, and the CHP's reports about the scene.

Haas testified that Frisk's vehicle was going west on Gertrude Avenue when it entered the intersection with Winton Way.⁸ There was a stop sign on the limit line on Gertrude Avenue where Frisk entered the intersection. There was no physical evidence indicating whether Frisk's vehicle had stopped at the stop sign because "a vehicle performing a normal stop does not leave evidence."

8 Haas testified that the two witnesses who thought Frisk was traveling southbound on Winton Way were incorrect because that "didn't match the physical evidence," and the witnesses' statements were not supported by the physical evidence.

Haas testified that the speeds of the vehicles could be estimated from formulas based on the physical evidence, including the crushing impact, skid and gouge marks, and the change in velocity. Haas testified to his opinion that defendant was going north on Winton Way at a "minimum" of 87 miles an hour before his car started to leave friction marks. The speed limit was 40 miles an hour.

Haas testified that when Frisk's vehicle entered the intersection, defendant's vehicle was 360 feet away. Defendant's car was "likely visible [to Frisk] but not likely to be determined a threat." Frisk's vehicle had mostly passed through the northbound lanes of the intersection, and he was driving 21 miles an hour when defendant's car hit Frisk's car on the driver's side. Defendant was going 79 miles an hour just before the collision, and had slightly slowed before leaving the skid marks.

There were almost 60 feet of skid marks on the pavement. The skid marks showed that defendant's car "was not aligned perfectly with the roadway, but it was moving to its left ...." It appeared defendant had been traveling in the right-hand lane "when he began to take evasive action and swerve to the left."

When defendant hit Frisk's car, Frisk's vehicle rotated counterclockwise. The gouge marks from Frisk's car, and the fluid trail from defendant's car, showed that the impact occurred near the center of the intersection. The gouge marks on the pavement showed the left rear wheel and rear axle on Frisk's car were so damaged by the impact that the axle was "bent up" so that the rear wheel was no longer touching the pavement. The gouge marks showed "that the impact between the two vehicles was significant enough to cause damage to the undercarriage [of Frisk's car]," and the axle "dug in the pavement as [Frisk's car] was spinning to its point of rest."

Frisk's car had "quite an amount of structural damage" to the driver's side that extended into the passenger compartment that "totaled" the car, and showed that it was "a severe collision" that resulted in the fatal injuries. The force of the collision showed the direction was from left to right.

The damage to defendant's car also showed that it had been in a "severe collision" that showed the vehicle went through "a substantial change of velocity," from front to back, and right to left.

Defendant's vehicle continued to move northwest after the collision and continued into the left turn lane on Winton Way. Defendant was able to straighten out his car, and it came to rest in the right-hand lane on Winton Way.

Haas testified that defendant was 360 feet away when Frisk entered the intersection. If Frisk looked down Winton Way, he would have been able to see defendant's car, but he would not have considered it to be a risk. If defendant had been driving the speed limit of 40 miles an hour rather than at 87 miles an hour, Frisk would have cleared both the northbound and southbound lanes of the intersection, and defendant would have been 100 feet away from Frisk's car.

On cross-examination, defense counsel asked whether there had been a "secondary impact" between the two cars as Frisk's car rotated counterclockwise. Haas testified that "[t]here could have been. I don't recall finding evidence that there was a secondary impact on either vehicle." A secondary impact would have slowed down the rotation rate, and Haas did not see any evidence of that. Haas did not consider a possible secondary impact in his speed calculations. However, Frisk's car eventually hit a pole that caused additional damage to the car.

DEFENSE EVIDENCE

Defendant did not testify. The only defense witness was Mark Whelchel, a registered mechanical engineer and a board certified forensic engineer, who conducted an accident reconstruction.

Whelchel reviewed the MAIT report and did not dispute the report's conclusions about how the two cars approached the intersection, the directions in which defendant and Frisk had been traveling before entering the intersection, which was corroborated by skid marks on the roadway, and that the point of impact was in the intersection. Whelchel agreed that defendant was driving in the number two lane on Winton Way; that Frisk was driving on Gertrude Avenue and entered the intersection; that defendant came across the lanes and hit Frisk in the intersection; and the vehicles rotated.⁹

9 Whelchel did not dispute the opinions from the CHP officers and the prosecution's expert, that the two witnesses erroneously stated Frisk was traveling southbound on Winton Way. He did not dispute the opinions from the prosecution's witnesses that the physical evidence showed Frisk was traveling west on Gertrude Avenue, and it was impossible he was driving on Winton Way. In closing argument, defense counsel argued Frisk ran the stop sign at Gertrude Avenue and drove into the intersection, consistent with the evidence that Frisk was traveling on Gertrude Avenue. Defense counsel asserted that the two witnesses mistakenly thought Frisk was driving on Winton Way because Frisk's car "popped out of nowhere so quickly," but that was because he ran the stop sign on Gertrude Avenue.

Whelchel testified he had no doubt that defendant was traveling at a very high rate of speed and estimated his speed at a "center point" of 86 miles an hour. Whelchel also agreed that the gouge marks on the roadway were from Frisk's car, because the impact bent the rear axle of Frisk's car and the axle gouged the road as Frisk's car went into a spin.

However, Whelchel disagreed with the MAIT report's discussion about the "departure angles of the vehicles. It seems clear to me that there is a secondary collision going on soon after the vehicles separate from the initial collision, and that makes it difficult to figure what that actual departure angle is."

Whelchel conducted a "sensitivity analysis," which was not done by the MAIT team, and concluded there had been a secondary impact between the two cars, based on the gouge marks and fluid trail, and there was a "change in heading" in defendant's car. There would not have been a "heading change" in defendant's car "without steering or a secondary collision." The only reasonable explanation for defendant's "heading change" was "a secondary contact" from Frisk's car that redirected its rotation. The secondary impact would have affected the separation angle by as much as three degrees.

Whelchel testified a secondary impact between the two cars was significant for the sensitivity analysis, and would have varied the heading of defendant's car by two or three degrees compared to the CHP's report, because it resulted in defendant's car going at a speed that was "unattainable" if Frisk actually stopped at the stop sign.

Whelchel also testified that the correct procedure would have been to do a momentum analysis and then a sensitivity analysis to get a range of speeds, followed by a "crush analysis" in order to find the range even more precisely. A crush analysis is "the check equation" that provides a range of speeds for comparison with other tests like momentum analysis, and it serves to verify other test results. A crush analysis was not done in this case.

Whelchel testified that the variation in the separation angles also affected the determination of the speed of Frisk's car at the point of impact. Whelchel disagreed with the MAIT team's conclusion that Frisk had stopped at the intersection and then reached a speed of 21 miles an hour by the time of the collision.

Whelchel evaluated the acceleration rates of a 1997 Nissan Sentra, and believed it was not reasonable to conclude that Frisk accelerated from the stop sign to a speed of 21 miles an hour, before the collision occurred 45 feet into the intersection. Instead, it was "much more likely that [Frisk's] vehicle entered at some speed close to its impact speed." "I just find it difficult to believe that [Frisk] could have stopped and accelerated to 21 [miles per hour]." The output horsepower of a vehicle's engine degrades over time, and if Frisk's car was not "impeccably maintained," it could not reach 20 miles an hour from a standstill at the stop sign to the point of impact.

Whelchel concluded that Frisk's car must have "move[d] through the intersection" without stopping. Once Frisk realized he had "blown the stop," and he was "beyond the point of no return," he would have entered the intersection "at something faster than 21 [miles an hour] and slowed, or let go of the brakes and tried to speed across."

Whelchel testified that if Frisk had stopped at the intersection and looked across Winton Way, he should have been able to perceive defendant as a threat based on his speed and distance. "But based upon acceleration rates, I find that difficult to believe that [Frisk] was stopped."

During cross examination, Whelchel testified that, even if defendant had not been speeding when he entered the intersection, a collision still might have occurred, depending on when Frisk entered the intersection and how much time appellant had to react.

Whelchel testified that defendant could have swerved into the left-turn lane on Winton Way because the "typical reaction of drivers when they're faced with something that appears into [their] path is to [unknowingly] follow the target."

Whelchel testified the only reasonable explanation for the heading change of defendant's car was a secondary impact with Frisk's car after the initial collision. The CHP's calculation of postimpact heading was incorrect if defendant's vehicle had a heading change. Whelchel performed a heading correction by conducting a "sensitivity analysis." Based on that analysis, defendant's car's heading changed by two to three degrees. The acceleration required for Frisk's car was higher than if Frisk had stopped at the intersection and then accelerated to 21 miles an hour. The change in the departure angle raised Frisk's speed to 23 miles an hour.

Whelchel testified that he believed Frisk did not stop at the intersection. If he pulled in front of defendant's car, Frisk's failure to stop would be the primary cause for the collision and not defendant's intoxication and speed since "you could still have a fatal collision at 40 or even 35 miles per hour broadside."

"[T]he ultimate question would boil down to was the accident one party's fault or another or if both were contributory. [¶] If the accident is unavoidable at the speed limit, I find it difficult to find liability on the party that was traveling the speed limit. If the party was traveling faster than the speed limit and didn't have time to react, then it would be ... incumbent on me to find what that percentage is, I suppose."

REBUTTAL EVIDENCE

In rebuttal, Daniel Haas, the prosecution's expert, testified that Whelchel's testimony did not change his opinion about the collision. Haas did not find any evidence of secondary impact, and "the evidence that existed indicated that there was no secondary impact of any significance, and likely none at all."

Haas did not conduct a crush analysis because it would only provide the change of velocity, but instead conducted a "seat estimation from crush," to estimate "how much crush the vehicles went through." He observed the damage on the vehicles, compared it to the calculated change of velocities and momentum, and determined the estimated crush was consistent with his calculations and observations. It was often difficult to conduct an accurate crush analysis on high-speed collisions where there is a lot of damage to the vehicles.

On cross-examination, Haas testified that he did not assume that Frisk had stopped at the stop sign at the intersection. Instead, he concluded that Frisk "did not blow the stop sign at 21 miles per hour" based on his analysis of the collision.

DISCUSSION

I. Exclusion of Marijuana Evidence

Defendant contends the court improperly denied his pretrial motion to introduce evidence that Frisk had some marijuana in his bloodstream and inside his vehicle. Defendant sought to show that Frisk was driving while impaired to support his defense claim that Frisk allegedly failed to stop at the intersection and/or yield the right-of-way to defendant, and that such actions were independent intervening causes of death. Defendant asserts the court's evidentiary ruling violated his due process right to present a defense because it excluded evidence that "circumstantially supported" his causation claim.

A. Motions in Limine

Prior to trial, the People filed a motion in limine to exclude any evidence that marijuana was found in Frisk's system, and that marijuana was also found in his car. The People argued such evidence was not relevant for any purpose, except defendant's speculative claim that Frisk's alleged marijuana use constituted contributory negligence. The People asserted there was no evidence Frisk was under the influence of marijuana at the time of the fatal collision, and the presence of marijuana in his car was irrelevant to any causation issues.

Defendant's motion in limine sought to introduce all evidence that showed that Frisk's conduct, and not defendant's intoxication, caused the fatal collision, including that there was marijuana in Frisk's system at the time.

B. The Court's Order

At the pretrial hearing, defense counsel stated that a laboratory report from the autopsy indicated Frisk had some marijuana in his system, that he had "active Delta-9 THC in his blood and nothing to indicate whether he was impaired or whether he smoked it ten minutes ago or two days ago."

The prosecutor concurred with defense counsel's summary of the report, and added that the substance "stays in your system." Defense counsel agreed that a person could have "active Delta-9s and not be impaired at all if you smoked it the night before or something."

The court noted that the defense did not have any evidence "that he was actually impaired at the time of the accident." Defense counsel said there was no evidence that Frisk was not impaired, and "[i]t goes both ways." Counsel argued there was circumstantial evidence Frisk was impaired because he "rolled through the stop sign" and did not observe defendant's car, so that Frisk's own driving showed "evidence of impairment."

The court was concerned that there was no evidence about the amount of marijuana in Frisk's system, or how "some" marijuana would have affected him. Defense counsel argued the presence of marijuana raised the inference Frisk might have been under the influence, and the question should be presented to the jury.

The court excluded any evidence that there was marijuana in Frisk's car.

As for the laboratory report, the court stated that evidence about the marijuana in Frisk's system would not be relevant without an evidentiary foundation that Frisk was under the influence at the time, and a defense expert would have to testify about his possible impairment.

The prosecutor clarified that the pathologist who performed the autopsy, and who was scheduled to testify at trial, did not perform the laboratory test; the report about the marijuana was from a laboratory in St. Louis, and it was attached to the autopsy report. Defense counsel suggested that the Department of Justice's chemist could testify about the effect of marijuana on a person.

The court ultimately excluded the evidence there was some marijuana in Frisk's system. The court held that even if a defense expert was available on the issue, there still would not be a "foundation to say he was under the influence at the time, so I do find it to be too speculative."

C. Motion for New Trial

After defendant was convicted, he filed a motion for new trial and argued the court erroneously excluded evidence that Frisk may have been under the influence of marijuana, and the court's order prevented defense counsel from raising causation to the jury. The court restated its earlier decision that the marijuana evidence was too speculative and denied the new trial motion.

D. Analysis

Defendant contends the court abused its discretion when it excluded evidence about the marijuana in Frisk's car, and that there was some marijuana in Frisk's system. The People assert there was an insufficient foundation for this evidence, and it would have also been inadmissible to support defendant's causation arguments.

"Only relevant evidence is admissible. [Citation.] Relevant evidence is broadly defined as that having a 'tendency in reason to prove or disprove any disputed fact that is of consequence' to resolving the case. [Citation.] Inferences drawn from the evidence must be logical and reasonable, not merely speculative. [Citations.] All relevant evidence is admissible, unless a specific statutory or constitutional provision bars its admission. [Citations.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.) The court has broad discretion to determine the relevance of evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1000-1001.)

"The court ... has no discretion to admit irrelevant evidence. [Citation.] 'Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.' [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 681-682.) A reasonable inference may not be based solely upon suspicion, imagination, speculation, supposition, surmise, conjecture, or guess work. (People v. Raley (1992) 2 Cal.4th 870, 891, superseded by statute on other grounds as stated in People v. Brooks (2013) 3 Cal.5th 1, 63, fn. 8; People v. Wright (2016) 4 Cal.App.5th 537, 546.) A finding of fact must be an inference drawn from evidence rather than mere speculation as to probabilities without evidence. (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other grounds in In re Sassounian 9 Cal.4th 535, 543, fn. 5.) " ' "[S]peculation is not evidence ...." [Citations.]' [Citation.]" (People v. Williams (2008) 167 Cal.App.4th 983, 989.)

An expert witness's opinion based on speculation, conjecture, or assumptions of fact without evidentiary support is inadmissible. (People v. Moore (2011) 51 Cal.4th 386, 405; People v. Wright, supra, 4 Cal.App.5th at p. 546.) " 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]' [Citation.] It is true that 'it is not necessary that the question include a statement of all the evidence in the case. The statement may assume facts within the limits of the evidence, not unfairly assembled, upon which the opinion of the expert is required, and considerable latitude must be allowed in the choice of facts as to the basis upon which to frame a hypothetical question.' [Citation.] On the other hand, the expert's opinion may not be based 'on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors .... [¶] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?' [Citation.]" (People v. Richardson, supra, 43 Cal.4th at p. 1008; People v. Moore, supra, 51 Cal.4th at p. 405.)

The court did not abuse its discretion when it excluded the defendant's proposed evidence that there was some marijuana in Frisk's system. There was no evidence about whether Frisk was under the influence of marijuana, or even about how much active Delta-9 THC was in his blood. The parties agreed that there could have been metabolites in Frisk's blood without any evidence of impairment. Defendant's offer of proof was speculative and would not have supported any expert testimony about whether Frisk was under the influence or might have failed to stop at the stop sign before driving into the intersection.

Defendant asserts the court's evidentiary ruling prevented him from presenting a defense. Generally, the application of ordinary rules of evidence does not infringe on a defendant's right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) As we will explain in issue II, post, the court admitted the defense evidence that Frisk may not have stopped at the stop sign, such that he was not presented from raising a defense in this case. That defense, however, could not be based on speculation or conjecture.

II. CALCRIM No. 620 and Causation Instructions

Defendant contends the court improperly gave CALCRIM No. 620 because it removed a key causation issue from the jury's consideration - that Frisk ran the stop sign and failed to yield the right-of-way to defendant - and such conduct was an independent intervening cause of death and would have undermined implied malice for the charged offenses. Defendant argues the instruction eliminated his only defense and "amounted to a directed verdict on the issue of foreseeability."

A. Motions in Limine

The People's motion in limine moved to exclude or limit the proposed defense evidence about Frisk's alleged contributory negligence. The People argued a crime victim's contributory negligence was not a defense to the charged offenses in this case. Instead, the People requested the court instruct the jury with CALCRIM No. 620, on substantial factors and causation.

The People further moved to exclude any defense evidence that Frisk ran or rolled through the stop sign at the intersection; that he suddenly pulled in front of defendant; and/or that defendant had the right of way. The People argued that evidence of causation was only relevant if the defendant's act was not a "substantial factor" in producing the harm or injurious situation. The evidence would show that defendant was driving in excess of 85 miles an hour when he entered the intersection, and his own conduct was the substantial factor in the collision.

Defendant's pretrial motion sought to introduce all evidence that showed Frisk's conduct was responsible for the fatal collision, including that he failed to yield or stop at the intersection.

B. The Court's Ruling

At the pretrial hearing, the court considered the parties' arguments about whether defendant could introduce evidence of Frisk's alleged contributory negligence and how to instruct the jury, separately from defendant's motion to introduce evidence about marijuana.

Defense counsel argued that the degree to which Frisk was responsible constituted evidence of contributory negligence. The prosecutor replied that the "substantial factor" test, as set forth in CALCRIM No. 620, applied to a criminal case instead of contributory negligence.

The prosecutor further argued that whether Frisk "rolled" through the stop sign was relevant only if "defendant's act was not a substantial factor, and his act of speeding, driving 86-plus-miles-an-hour in a 40 zone, I think it's pretty hard to argue that's not a substantial factor."

The court held the defense could introduce evidence that Frisk might have "rolled" or failed to stop at the stop sign at Gertrude Avenue and Winton Way. The court also held it would give the "substantial factor" instruction based on this evidence.

C. The Instructions

The court gave the following instructions regarding causation. In CALCRIM No. 520, the jury was instructed on the elements for count 1, second degree murder, including the following "substantial factor" language:

"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.

"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death." (Italics in original.)

In CALCRIM No. 590, the jury was instructed on the elements of count 2, gross vehicular manslaughter while intoxicated, based on speeding and reckless driving, which contained similar "substantial factor" language.

"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.

"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death." (Italics in original.)

The same "substantial factor" language was in CALCRIM No. 591, defining the lesser included offense to count 2 of vehicular manslaughter while intoxicated.

In CALCRIM No. 620, the court instructed the jury on causation and substantial factor:

"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.

"The failure of Mathew Frisk or another person to use reasonable care may have contributed to the death. But if the defendant's act was a substantial factor causing the death, then the defendant is legally responsible for the death even though Mathew Frisk or another person may have failed to use reasonable care.

"If you have a reasonable doubt whether the defendant's acts caused the death, you must find him not guilty." (Italics in original.)

D. Closing Arguments

In closing argument, the prosecutor focused on defendant's conduct of driving while intoxicated at nearly 90 miles an hour as the substantial factor that resulted in Frisk's death.

In discussing the elements of second degree murder, the prosecutor explained the difference between express and implied malice, and stated that defendant was charged under an implied malice theory of second degree murder. The prosecutor cited defendant's history of drunk driving, his prior accidents in Oregon, his father's description of defendant's behavior, and defendant's conduct and intoxication in this case as establishing implied malice for second degree murder, and also gross negligence for the second count.

Defense counsel's closing argument focused on the possibility that Frisk ran the stop sign, and he was responsible for the collision under the substantial factor instruction. "[T]he big issue here ... is was [defendant a] substantial factor in the death of Matthew Frisk or not? And he's not a substantial factor in his death ...." Counsel argued defendant had the right-of-way, Frisk ran the stop sign, and he should have been able to see defendant's car down the road but continued into the intersection.

"The bottom line is if someone runs a stop sign the way it's reasonable to think Matthew Frisk ran the stop sign, a sober driver going 40 miles per hour about to hit that intersection at Winton and Gertrude still would have plowed into him, and it would have been a fatal accident. That's the bottom line."

Defense counsel argued defendant's conduct was not a substantial factor because he was only "speeding down a road that people speed down all of the time. There's no evidence that he was driving in any other way more dangerous than that ...."

"And the very fact that Matthew Frisk ran the stop sign, that's very clear. Anybody running that stop sign - if somebody just driving perfectly sober and perfectly legally was about to enter that intersection at Winton and Gertrude could have plowed into him, and it could have been a fatal accident, okay, and that's what caused this death, not - not [defendant's] actions."

Defense counsel argued there was evidence defendant slammed on his brakes and swerved, and he tried to avoid the accident, and that showed he was not acting without conscious disregard for human life and he was not guilty of murder. Counsel further argued that speeding was only negligent, and not grossly negligent for the second count.

In rebuttal, the prosecutor replied defendant was driving in an "incredibly egregious and dangerous manner" because he was grossly intoxicated and going nearly 90 miles an hour, in a zone that was marked at 40 miles an hour. The prosecutor addressed the defense claim that Frisk ran the stop sign:

"We don't know if he ran the stop sign or not. We know he's going about 21 miles an hour at the time of the collision. It's possible that he stopped and accelerated to that amount. It's also possible that he rolled through the stop sign and accelerated to that amount. Maybe he did, maybe he didn't. [¶] ... [¶]

"The point is that it does not matter in any way whatsoever. It doesn't matter if he ran that stop sign or not. It makes no difference whatsoever because [defendant], with his speed going 90 miles an hour in that 40-mile-an-hour zone, drunk, marijuana in his system as well, is absolutely a substantial factor in that accident. There's no way you can say he's just a trivial or remote factor in that accident.

"He has the speed. If he's not speeding like that, there's no accident. If he's not so drunk, then he can possibly react to the dangers that his speed created...."

E. Substantial Factor and Causation

Defendant contends that CALCRIM No. 620 "effectively eliminated" his defense that Frisk's act of allegedly running or rolling through the stop sign at the intersection constituted contributory negligence, and the foreseeability of his conduct should have been left for the jury to decide for both the murder and manslaughter charges. Defendant concedes that it is not clear from the record whether defense counsel objected to CALCRIM No. 620, but asserts this court must address the issue because the instruction violated his substantial rights.

"In homicide cases, a 'cause of the death of [the decedent] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of [the decedent] and without which the death would not occur.' [Citation.]" (People v. Cervantes (2001) 26 Cal.4th 860, 866 (Cervantes).) "To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. [Citations.]" (People v. Briscoe (2001) 92 Cal.App.4th 568, 583-584, fn. omitted, italics added; People v. Jennings (2010) 50 Cal.4th 616, 643.) The issue of causation is a factual question to be resolved by the jury. (Cervantes, supra, 26 Cal.4th at p. 871; People v. Brady (2005) 129 Cal.App.4th 1314, 1326.)

While the jury must resolve causation, "[i]t is well established that a crime victim's contributory negligence is not a defense. [Citations.]" (People v. Marlin (2004) 124 Cal.App.4th 559, 569; People v. Schmies (1996) 44 Cal.App.4th 38, 46; People v. Armitage (1987) 194 Cal.App.3d 405, 420.) A defendant may be " 'criminally liable for a result directly caused by his or her act, even though there is another contributing cause.' " (People v. Catlin (2001) 26 Cal.4th 81, 156, quoting 1 Witkin & Epstein, Cal. Criminal Law (3d 2000) Elements, § 37, p. 243.) "In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim's or third party's conduct was the sole or superseding cause of the death. [Citations.]" (People v. Autry (1995) 37 Cal.App.4th 351, 360, italics in original.)

"[I]t is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause. [Citations.]" (People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421.) "Facts attacking legal causation are only relevant if the defendant's act was not a substantial factor in producing the harm or injurious situation. [Citation.]" (People v. Wattier (1996) 51 Cal.App.4th 948, 953, italics in original.) To constitute a sole or superseding cause, the victim's conduct must have been "so unusual, abnormal, or extraordinary that it could not have been foreseen. [Citation.]" (People v. Schmies, supra, 44 Cal.App.4th at p. 52, italics added.) Absent such conduct, evidence the victim "may have shared responsibility or fault for the accident does nothing to exonerate [a] defendant for his role" and "is not relevant." (Id. at p. 51.)

"[A] superseding cause must break the chain of causation after the defendant's act before he or she is relieved of criminal liability for the resulting harm." (People v. Wattier, supra, 51 Cal.App.4th at p. 953, italics in original.)

As summarized by the California Supreme Court: " 'In general, an "independent" intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be "independent" the intervening cause must be "unforeseeable ... an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '... The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.... The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" [Citation.]' [Citations.]" (Cervantes, supra, 26 Cal.4th at p. 871.)

The language of CALCRIM No. 620 closely tracks the law on reasonable care and correctly states that a defendant is criminally responsible if his or her conduct was a "substantial factor contributing to the result...." (People v. Catlin, supra, 26 Cal.4th at p. 155; People v. Butler (2010) 187 Cal.App.4th 998, 1009; People v. Marlin, supra, 124 Cal.App.4th at p. 570; People v. Jennings, supra, 50 Cal.4th at p. 644; People v. Gonzalez (2012) 54 Cal.4th 643, 657; People v. Schmies, supra, 44 Cal.App.4th at p. 49; People v. Scola (1976) 56 Cal.App.3d 723, 726.)

F. Analysis

The court correctly instructed the jury with CALCRIM No. 620, and the other instructions that contained the "substantial factor" language. These instructions were consistent with well-recognized principles of causation, natural and probable consequences, and substantial factor. Based on the entirety of the instructions, the jury was correctly instructed to decide whether Frisk's death was the natural and probable consequence of defendant's act, whether defendant's act was a substantial factor in causing Frisk's death, or if Frisk's own conduct constituted something unusual that "intervened." (People v. Bland (2002) 28 Cal.4th 313, 338.) In addition, the instruction further advises the jury: "If you have a reasonable doubt whether the defendant's act caused the death, you must find him not guilty," thus giving the jury another possibility to consider when evaluating the evidence.

Defendant argues that CALCRIM No. 620 misstated the law of causation and amounted to a "directed verdict" on the question of foreseeability, based on the analysis in People v. Roberts (1992) 2 Cal.4th 271 (Roberts). In that case, an inmate at Vacaville was stabbed multiple times by the defendant and other inmates. The inmate/victim was mortally wounded, picked up a knife left by one of his assailants, and fatally stabbed a prison guard. The defendant, another inmate, was convicted of the murder of both the inmate/victim and the prison guard.

As to the murder of the prison guard, the trial court instructed the jury: " 'A defendant is the proximate cause of the death of another even though the immediate cause of the death is the act of a third person, if the third person is no longer a free moral agent as the direct result of the defendant's unlawful act. [¶] A defendant who, in conscious and reckless disregard for human life, intentionally and unlawfully inflicts an injury upon a third person is criminally responsible for the acts of that person while in delirium or a similar state of unconsciousness where such condition is the direct result of the defendant's unlawful act. [¶] It is immaterial that the defendant could not reasonably have foreseen the harmful result....' " (Roberts, supra, 2 Cal.4th at pp. 315-316, italics added in original.)

Roberts reversed the defendant's conviction for the murder of the prison guard based on the language of that instruction, even though there was sufficient evidence for the jury to find the guard's death was "the natural and probable consequence of the defendant's act" since the guard was in the area of the stabbing. (Roberts, supra, 2 Cal.4th at p. 321.) "The criminal law ... is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act." (Id. at p. 319.) "[T]he instruction incorrectly stated the law of proximate cause. A result cannot be the natural and probable cause of an act if the act was unforeseeable. [Citation.] An instruction that told the jury to disregard foreseeability would inevitably lead it to ignore the nature of [the first inmate's] response to defendant's attack, and hence would substantially distract the jury from considering the causation element of the offense - an element that was very much at issue in the case. The instructional error thus cannot be said to have been harmless beyond a reasonable doubt [citation] and defendant's conviction of the murder of [the prison guard] must be reversed." (Id. at pp. 321-322, fn. omitted.)

Defendant asserts that as in Roberts, CALCRIM No. 620 allowed the jury to "disregard" Frisk's alleged negligence and it "removed the issue of foreseeability" from the jury's consideration. In contrast to Roberts, however, the jury in this case was not expressly instructed to disregard foreseeability, but instead instructed that an act causes death if the death was "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 if likely to happen if nothing unusual intervenes." (Italics in original.) We further note that the California Supreme Court has reaffirmed the substantial factor language in decisions reached after Roberts. (See, e.g., People v. Catlin, supra, 26 Cal.4th at p. 155; People v. Sanchez (2001) 26 Cal.4th 834, 847-848; People v. Jennings, supra, 50 Cal.4th at pp. 643-644; People v. Gonzalez, supra, 54 Cal.4th at p. 657.)

The jury was thus aware of the correct legal principles to potentially find that defendant's drunk driving in excess of 85 miles an hour was not a substantial factor, and that Frisk's own conduct of allegedly running or rolling through the stop sign, as perhaps 20 miles an hour, was the intervening and superseding cause of his death.

We further note that defense counsel extensively argued this issue to the jury, and relied on the testimony of both the prosecution and defense accident experts to assert that Frisk must have run or rolled through the stop sign to reach a speed of 21 miles an hour at the time of impact. Defense counsel concluded that Frisk's conduct of running the stop sign caused his own death since defendant had the right-of-way. The issue was thus correctly presented to the jury, and it was rejected.

III. Exclusion of Defense Expert's Testimony

Defendant argues the court improperly granted the People's motion to exclude a proposed defense expert, Dr. Hamm, who would have testified that defendant suffered from a mood disorder which triggered excessive alcohol consumption and chronic alcohol abuse, such that he was suffering from "substance induced persistent dementia" at the time of the fatal collision that affected defendant's judgment and impulse control, so that he was unable to form the intent to commit any criminal offense.

A. Motion in Limine

The People moved to exclude the testimony of Dr. Hamm, who was proposed to testify as a defense expert. The People's motion stated that according to Dr. Hamm's report, he would testify that defendant suffered from "a life-long mood disorder, which triggered excessive alcohol consumption, which developed into chronic alcohol abuse, which, in turn, caused 'substance induced persistent dementia' affecting [defendant's] general judgment and impulse control."

Dr. Hamm's report further stated that at the time of the fatal collision, defendant's "particularly severe level of intoxication further created acute impairment of judgment and impulse control, resulting in his inability to foresee the consequences of his behavior or inhibit his impulses." Dr. Hamm's opinion was that defendant "was 'not able to form the intent to commit any of the offenses for which he has been charged.' "

The People argued that Dr. Hamm's testimony should be limited because existing law provided that a jury could consider evidence of a defendant's voluntary intoxication only to determine whether he acted with an intent to kill, or with deliberation and premeditation. The People argued that voluntary intoxication could only negate express malice, and it did not apply to the second degree murder charge in this case since it was exclusively based on the theory of implied malice.

B. The Court's Ruling

At the pretrial motions hearing, the court said it was "struggling" with the concept of Dr. Hamm's proposed testimony since the People did not have to prove an intent to kill. Defense counsel agreed defendant was not charged with a specific intent crime, but the People still had to prove defendant intended to harm someone and appreciated the dangerousness of his conduct. Counsel argued defendant's mental health condition was relevant as to whether it would affect his ability to make reasonable decisions, evaluate his past experience, and think rationally. Counsel argued Dr. Hamm's proposed testimony was admissible to explain defendant lacked the ability to "properly evaluate information the way a regular person would do in order to make the right sorts of decisions."

The court replied that an expert could not testify to the ultimate issue of whether the defendant had the capacity to form intent. Defense counsel agreed, but asserted Dr. Hamm would only testify that defendant suffered from mental health issues, "and this is how these issues can affect the person."

The prosecutor said that based on Dr. Hamm's report, he was going to testify that defendant had some sort of mood disorder that caused him to drink, that disorder turned into chronic alcohol abuse, and that resulted in "substance-induced persistent dementia" that affected his judgment and impulse control. Dr. Hamm also planned to testify that on the day of the fatal collision, defendant was so intoxicated that he suffered from "acute impairment of judgment and impulse control," and he was " 'not able to form the intent to commit any of the offenses for which he's charged.' " The prosecutor argued such evidence was inadmissible to negate implied malice for second degree murder.

Defense counsel conceded that the expert could not testify about his opinion on defendant's ability to form intent, or defendant's specific mental state at the time of the collision, but the expert could testify about the history of defendant's mental disorder.

The prosecutor replied that voluntary intoxication could only negate express malice, and it did not apply when the defendant was only charged with an implied malice offense. The prosecutor argued the expert could not testify about whether defendant had the specific mental state for the charged offenses because defendant was being charged with second degree murder exclusively on the theory of implied malice.

The court held that evidence of a defendant's voluntary intoxication could only negate express malice, and it was not admissible when a murder charge was based exclusively on implied malice. The court held Dr. Hamm's proposed testimony about defendant's alleged mental illness from voluntary intoxication was inadmissible.

C. New Trial Motion

Defendant's new trial motion argued that the court erroneously excluded the defense expert, and that prevented defense counsel from arguing that defendant suffered from an "extreme impairment" to negate the state of mind required to find him guilty of murder. The court stated that such evidence was inadmissible under state law, and denied the new trial motion.

D. Evidence of a Mental Defect and Voluntary Intoxication

Defendant asserts that he was entitled to introduce evidence of his mental defect or disease as a defense to a homicide charge, and the court improperly excluded Dr. Hamm's proposed testimony in violation of his constitutional right to present a defense.

" 'Murder is the unlawful killing of a human being ... with malice aforethought.' [Citation.] 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' [Citation.]" (People v. Soto (2018) 4 Cal.5th 968, 974 (Soto).) "The primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not. [Citation.]" (Id. at p. 976.)

"The diminished capacity defense, which addressed an accused's 'general capacity or ability to form a specific intent or harbor a mental element of an offense,' was abolished in 1982. [Citations.]" (People v. Reyes (1997) 52 Cal.App.4th 975, 982, fn. omitted (Reyes); § 25, subd. (a); § 28, subd. (b).) As a result, evidence of the defendant's voluntary intoxication and/or mental defect "may no longer be used as an affirmative defense to a crime," and such evidence is admissible "solely to negate an element of crime which must be proven by prosecution. [Citation.]" (Reyes, supra, 52 Cal.App.4th at p. 982; § 25, subd. (a).)

Therefore, "[e]vidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." (§ 28, subd. (a), italics added.)

Similarly, "[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." (§ 29.4, subd. (a); former § 22.)

"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b), italics added; former § 22.)

Section 29.4 does not permit evidence of voluntary intoxication in consideration of whether a defendant acted with implied malice. (People v. Timms (2007) 151 Cal.App.4th 1292, 1300.) "By its terms, subdivision (b) permits evidence of voluntary intoxication 'solely' on the question of whether the defendant 'formed a required specific intent,' 'premeditated,' 'deliberated,' or 'harbored express malice aforethought.' Because harbored implied malice does not appear in this enumerated list, section 29.4 prohibits the use of evidence of voluntary intoxication to establish that a defendant acted without implied malice. [Citations.]" (Soto, supra, 4 Cal.5th at p. 985, italics in original.) "[E]vidence of voluntary intoxication is not admissible on the question of implied malice, that is, to prove that defendants did not know of the danger they were creating by their actions, or that they did not consciously disregard that danger." (Id. at p. 977.) "By prohibiting evidence of voluntary intoxication to negate implied malice," the Legislature concluded that "a defendant who acts with conscious disregard for life should be punished for murder regardless of whether voluntary intoxication impaired his or her judgment." (Id. at pp. 977-978, italics in original.)¹⁰

10 California law recognizes three theories of second degree murder—unpremeditated murder with express malice, implied malice murder, and second degree felony murder. (People v. Swain (1996) 12 Cal.4th 593, 601.) In Soto, the defendant was charged with first degree murder, and convicted of second degree murder, for stabbing a victim while the defendant was under the influence of methamphetamine. On appeal, the defendant claimed he was only guilty of voluntary manslaughter based on imperfect self-defense resulting from his voluntary intoxication, and the jury was incorrectly instructed. Soto held that "evidence of voluntary intoxication on the question of whether a defendant believed it necessary to act in self-defense" was inadmissible under section 29.4, and the jury was correctly instructed "to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense." (Soto, supra, 4 Cal.5th at p. 970.)

Section 29 addresses expert testimony on these subjects: " '[I]n the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states .... The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.' " The trial court's rulings under this statute are reviewed for an abuse of discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 663; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1327.)

Thus, evidence of the defendant's mental defect and/or voluntary intoxication is not an affirmative defense, but only admissible on the issue of whether the defendant actually formed a required specific intent. It is inadmissible to negate the existence of general criminal intent. (People v. Williams (2001) 26 Cal.4th 779, 789; People v. Atkins (2001) 25 Cal.4th 76, 81; People v. Carr (2000) 81 Cal.App.4th 837, 843; People v. Parks (1971) 4 Cal.3d 955, 960.)

The evidentiary limitations stated in sections 28, 29, and 29.4 " 'embod[y] a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.' [Citation.]" (People v. Timms, supra, 151 Cal.App.4th at p. 1300.) These limitations do not deprive the defendant of the ability to present a defense or relieve the People of the burden of proving every element of the charged crime beyond a reasonable doubt, and do not violate defendant's constitutional rights to due process and equal protection. (People v. Martin (2000) 78 Cal.App.4th 1107, 1116-1117; People v. Carlson (2011) 200 Cal.App.4th 695, 707-708; People v. Timms, supra, 151 Cal.App.4th at pp. 1299-1302.)

Evidence of voluntary intoxication "is irrelevant to proof of the mental state of implied malice or conscious disregard." (People v. Timms, supra, 151 Cal.App.4th at p. 1300.) Voluntary intoxication is inadmissible to negate the capacity to form the mental states for the charges offenses of second degree murder and gross vehicular manslaughter while intoxicated. (People v. Martin, supra, 78 Cal.App.4th at p. 1113; People v. Carlson, supra, 200 Cal.App.4th at p. 709.) The Legislature's policy decision in section 29.4, that "evidence of voluntary intoxication is irrelevant to proof of certain mental states," does not violate due process. (Soto, supra, 4 Cal.5th at pp. 797-798, citing with approval People v. Timms, supra, 151 Cal.App.4th at pp. 1298-1301 and People v. Martin, supra, 78 Cal.App.4th at pp. 1115-1117.)

E. Analysis

Defendant asserts that evidence of his alleged mental defect based on his voluntary intoxication was admissible because the jury in this case was instructed "on both express and implied malice" for second degree murder.

The court instructed the jury with CALCRIM No. 520 on the elements of second degree murder, which stated in part:

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant committed an act that caused the death of another person;

"AND

"2. When the defendant acted, he had a state of mind called malice aforethought;

"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

"The defendant acted with express malice if he unlawfully intended to kill.

"The defendant acted with implied malice if:

"1. He intentionally committed an 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.

"Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time." (Italics in original.)

Defendant asserts this language in CALCRIM No. 520 shows he was charged with an express malice offense, so that his proposed evidence from Dr. Hamm was admissible to negate express malice. To the contrary, the entirety of the record reflects that the prosecution proceeded on a theory of second degree murder exclusively based on implied malice. The instructional language was definitional in nature, and intended to distinguish between express and implied malice. In closing argument, the prosecutor discussed the elements of second degree murder, explained the difference between express and implied malice, and stated that defendant was charged with an implied malice offense. Defense counsel similarly advised the jury that "there's no expressed malice here. It's all implied malice."

Next, defendant argues Dr. Hamm's proposed testimony was admissible because the prosecution based its implied malice theory "primarily on [defendant's] prior history rather than the circumstances of the offense," and Dr. Hamm's testimony was relevant as to defendant's "ability to learn from prior experiences, and therefore relevant to whether or not he subjectively appreciated a risk of danger to the life of another."

Defendant's characterization of the prosecution's theory is simply a restatement of implied malice. "[A] murder committed with implied malice requires that the prosecution demonstrate the defendant in fact acted with malice. [Citation.] The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of ' "an act, the natural consequences of which are dangerous to life." ' [Citation.] The mental component ... involves an act ' "deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life...." ' [Citation.]" (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.) "The very nature of implied malice ... invites consideration of the circumstances preceding the fatal act. [Citations.]" (Id. at p. 107.)

In determining whether the defendant intentionally committed an act, the natural consequences of which are dangerous to life, the jury is entitled to consider all of the events leading up to the collision. (People v. Nieto Benitez, supra, 4 Cal.4th at pp. 107-108.) The prosecution's introduction of evidence regarding defendant's prior acts of driving under the influence, in order to establish implied malice, did not transform the charged offense into an express malice crime to permit the introduction of Dr. Hamm's testimony.

Finally, defendant argues the court's exclusion of Dr. Hamm's testimony was prejudicial because the circumstances of the crime did not "strongly support a finding of implied malice." While defendant has not raised a substantial evidence challenge to his conviction for second degree murder, we are compelled to note his conviction is supported by overwhelming evidence: driving at least 85 miles an hour as he went down Winton Way while other cars were on the road; his extremely high blood-alcohol level of at least 0.23 percent; hitting Frisk's vehicle with such force and speed that it bent the axle; the grievous injuries suffered by Frisk consistent with the speed and massive force that slammed into his car; defendant's prior drunk driving and high-speed collisions in Oregon; his failure to appear for the pending case in Oregon; his father's warnings and attempts to prevent defendant from driving while intoxicated, and defendant's dismissive reaction; his father's realization that he had to hide the car keys in his locked bedroom to prevent defendant from driving; and defendant's act of breaking into the bedroom to steal the keys, leaving behind empty cans of beer.

DISPOSITION

The judgment is affirmed.

/s/_________

POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.