Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS043149
RUSHING, P.J.
I. Statement of the Case
A jury convicted defendant Justo Morales of two counts of second degree murder, two counts of gross vehicular manslaughter while intoxicated, driving while intoxicated and causing injury, driving with a.08 percent blood-alcohol level and causing injury, and hit-and-run driving with serious permanent injury. The jury further found that he personally inflicted great bodily injury on four victims and fled the scene after committing the offenses. (Pen. Code, §§ 187, subd. (a), 191.5, subd. (a), 12022.7; Veh. Code, §§ 23153, subds. (a) & (b), 20001, subds. (b)(2) & (c).) The court sentenced defendant to a determinate term of 10 years with a consecutive indeterminate term of 15 years to life.
All further unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims the court erred in admitting evidence of his prior driving record. He claims the court erroneously instructed the jury on assumption of the risk and misinstructed on the defense of voluntary intoxication, the knowledge element of hit-and-run driving, and the required concurrence of act and mental state. He claims the court erred in refusing his instruction defining implied malice. And last, he claims the court erred in imposing an upper term for driving while intoxicated.
Defendant has also filed a petition for a writ of habeas corpus (H032269, In re Justo Morales), in which he claims his attorney rendered ineffective assistance of counsel. We have considered the petition with this appeal and shall dispose of it in a separate order.
II. Facts
On December 2, 2004, around 8:15 p.m., defendant drove his large SUV southbound on Highway 101. A number people saw him driving and called 911 to report him. Cecilia Acuna and Ester Almanza testified that defendant was weaving between lanes and on and off the right shoulder going over 80 m.p.h. and forcing cars to the shoulder. Manuel Roque testified that at one point, defendant moved from left to right, narrowly missing his truck, and then drove onto the right shoulder, hit a temporary road sign, and continued on. Nick Rocha testified that at another point, defendant forced him off the side of the freeway. He followed defendant from a few car lengths back and flashed his lights. However, defendant swerved, almost running another car off the road, and then exited the freeway. He then drove up an embankment, backed down, and reentered the freeway, going even faster. Acuna testified that defendant came up so close to her that she had to swerve onto the shoulder to avoid being hit. She said he did the same thing to the car in front of her. Anthony Bayne testified that defendant scraped the side of his car as Bayne tried to avoid him. Defendant then continued down the freeway, swerving from one side to the other.
Sylvia Villanueva was also on the freeway in her minivan, driving her three daughters, Maria, Catalina, and Elizabeth, and her mother in law, Josephina Rocha. She was in the right lane. At one point, she noticed defendant weaving and quickly approaching her from behind. He passed her so closely on the left that she had to move farther to the right. Then the truck in front of her almost went off the road. Some time later, she saw defendant’s SUV again approaching her from behind at around 85 m.p.h. Defendant swerved over to the center divider and then swerved back into the right lane, hitting Villanueva’s van and causing it to skid and roll over. Josephina and Catalina were immediately ejected and killed; Maria was ejected and suffered near fatal injuries; Sylvia and Elizabeth were stuck inside the minivan. Sylvia was hospitalized for four days with a cerebral contusion and arm injury.
As a result of the collision, defendant lost control of his SUV, and it rolled across the freeway and through a fence, landing upside down on a frontage road. Defendant climbed out of the SUV and then looked around. He immediately fled the scene. At a nearby gas station, Cecilia Mendoza, the attendant, saw defendant come in. She remarked that his head was bleeding and asked if he was okay. He said he was okay and left. Mendoza called the police. Outside the station, at defendant’s request, Mendoza gave him her phone, but he handed it back, and she called his wife, whom he spoke to for a while.
A short time later, defendant told California Highway Patrol (CHP) Officer Peter Aguilar that he had come to the gas station after an accident. They returned to the frontage road, where CHP Officer Craig Jackson spoke to defendant. Officer Jackson observed that defendant was disoriented, his head was lacerated, his speech was slightly slurred, his eyes were red, and he smelled of alcohol. Defendant said that he left work at 4:00 p.m., fell asleep, and woke up after the accident. However, he said that he had slept over seven hours the night before. He denied that he had been drinking. He was then arrested.
Defendant’s blood was drawn at 11:15 p.m., and tests revealed a blood-alcohol level of.13 percent and the presence of the active ingredient in marijuana. A forensic toxicologist opined that defendant had used marijuana roughly around the time of the accident, two to three hours before his blood was drawn. He further testified that marijuana can cause driving errors, and the combination of marijuana and alcohol intensifies the intoxicating effect of both, slowing reaction time, making it difficult to maintain a constant speed, and causing weaving.
The prosecution introduced evidence of his prior driving record. In particular, defendant had two prior convictions for driving under the influence (DUI) in August and October 1990, when he was around 18 years old. His license was suspended until March 2000, and he was convicted of driving with a suspended license in August 1996 and April 1998. Starting in May 1998, defendant participated in a jail DUI program. In July 1998, after his release, he enrolled in an 18-month multiple-DUI program, which he completed in February 2000. That program reviewed the statistics concerning alcohol-related accidents resulting in injury or death, instructed on the correlation between blood-alcohol levels and driving impairment, warned that impairment intensifies when alcohol and marijuana are combined, and cautioned that alcohol impairs judgment and that bad judgment leads to fatal accidents. Defendant’s driving privileges were reinstated in March 2000. However, because he had been convicted of driving with a suspended license earlier that March, his license was suspended again. In February 2001, the Department of Motor Vehicles (DMV) advised him that he had been deemed a “negligent operator” and suspended his license until September 2001. Thereafter, defendant regained his driving privileges, and, on the day of the accident, he had a valid license.
Irma Rodriguez, defendant’s wife, testified that their five-year-old son suffers from severe birth defects and mental and physical disabilities. He has recurrent, potentially life-threatening seizures. Together she and defendant administer medication to control the seizures. She testified that on December 2, 2004, their son showed seizure symptoms, she administered some medication, and then called defendant, who usually got off work around 4:00 p.m. and was back home between 6:00 or 6:30 p.m. She could not recall when she called, saying it could have been 4:30, 5:30, or even 6:00 p.m.; but she said it was already dark outside. He did not answer, and she left a message on his cell phone. After some time—she could not say how long—defendant returned her call. He sounded normal and sober and did not mention where he was. She told him to return quickly because she feared their son would have another seizure. He said he was coming. Later, he called from the service station and told her about the accident.
In an interview with Heather Hardee, an investigator for the prosecution, Rodriguez said that on the day of the accident, she called defendant at noon, 2:00 p.m., and 4:30 p.m. and left messages each time. However, at trial, Rodriguez said she called him 9:00 a.m. and noon.
Contrary to what defendant told the Officer Jackson, Rodriguez testified that he did not sleep for seven hours the night before the accident.
Defendant’s sister and two of his friends testified to their belief that defendant had a good character for exercising care and caution for the safety of others and was not a reckless person.
III. Evidence of Defendant’s Driving Record
Defendant contends the court abused its discretion in admitting the evidence of his prior driving record.
Before trial, the prosecutor sought the admission of 11 items related to defendant’s driving record, arguing they were relevant to prove implied malice, and in particular, defendant’s knowledge at the time of the accident that driving under the influence was dangerous.
The court agreed to admit the two 1990 DUI convictions, three of five convictions for driving with a suspended license, an administrative decision to suspend his license as a negligent operator for some minor moving violation, and evidence of defendant’s participation in DUI counseling programs. The court excluded two prior convictions for driving with a suspended license and two prior convictions for speeding.
Defendant claims that none of the evidence was relevant and that it was more prejudicial than probative. (Evid. Code, §§ 210, 352.) He argues that its admission rendered his trial fundamentally unfair and compels reversal.
In People v. Watson (1981) 30 Cal.3d 290 (Watson), the California Supreme Court held that a defendant charged with killing another while driving under the influence may be convicted of second degree murder based on a finding of implied malice, that is, a finding that the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. (Id. at pp. 296-297.) “ ‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’ ” (Id. at pp. 300-301.)
Under Evidence Code section 1101, subdivision (a), the evidence of defendant’s prior driving record was not admissible to prove his bad character or propensity to break the law. However, in general, evidence of prior misconduct is admissible to prove a defendant’s subjective knowledge and awareness. (Id., subd. (b).) Thus, in DUI cases, where the defendant is charged with second degree murder, courts routinely and properly admit evidence of prior driving conduct to show that the defendant knew that drunk driving was dangerous and thus prove implied malice. (See, e.g., People v. Ortiz (2003) 109 Cal.App.4th 104, 116; People v. Brogna (1988) 202 Cal.App.3d 700, 706-710; People v. McCarnes (1986) 179 Cal.App.3d 525, 532-533 (McCarnes); People v. Eagles (1982) 133 Cal.App.3d 330, 340.)
Defendant suggests that his prior DUI convictions may show his knowledge that driving under the influence was illegal, but they do not show his knowledge that it was dangerous.
In McCarnes, supra, 179 Cal.App.3d 525, the court rejected the same argument. “[T]he reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe [citations] is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers. [¶] Moreover, included in the evidence of two of defendant’s convictions, as shown to the jury, was the sentence that he enroll in and complete a drinking driver’s education program. Even if we assume defendant did not realize after his convictions that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his repeated exposure to the driver’s educational program. To argue otherwise is little short of outrageous.” (Id. at p. 532, italics in original.)
Similarly, in People v. Brogna, supra, 202 Cal.App.3d 700, the court explained that the very act of drinking and driving “creates the risk that an intoxicated driver will perform or omit to perform an act which proximately causes another’s death.” (Id. at p. 709, fn. omitted.) “One who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others.” (Ibid.) Citing McCarnes, the court opined, that “driving under the influence constitutes a criminal offense precisely because it involves an act which is inherently dangerous. [Citation.] That simple fact has been made well known to all segments of our society through virtually every form of mass media. Considering today’s heightened level of public awareness, we cannot believe that any person of average intelligence who has suffered a ‘drunk driving’ conviction would be oblivious to the risks caused by driving while intoxicated.” (Ibid.; accord, People v. Ortiz, supra, 109 Cal.App.4th 115-116.)
Defendant criticizes these cases, arguing that they apply an objective test—i.e., persons with DUI convictions should know that drunk driving is dangerous—to find the actual knowledge of that fact. However, in Watson, supra, 30 Cal.3d 290, the court explained that where a defendant has consumed enough alcohol to raise his blood alcohol content to a level which would support a finding that he was legally intoxicated and has driven his car to the establishment where he had been drinking, it could be presumed that he knew he would have to drive again later and “was aware of the hazards of driving while intoxicated.... ‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.” (Id. at p. 301, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 897.)
We further note that defendant’s DUI convictions were relevant because they established that he knew drunk driving was illegal, if not dangerous, and also that he knew his convictions had, in part, led to DUI counseling programs that focused on the dangers of drunk driving. As in McCarnes and numerous other cases, defendant’s DUI convictions and the programs he completed together have a strong tendency to show that he appreciated the dangers of driving under the combined influence of alcohol and marijuana. (E.g., People v. Ortiz, supra, 109 Cal.App.4th at pp. 108-109; People v. Garcia (1995) 41 Cal.App.4th 1849, 1837, disapproved on other grounds in People v. Sanchez (2001) 24 Cal.4th 983, 991, fn. 3; People v. Autry (1995) 37 Cal.App.4th 351, 355; People v. Johnson (1994) 30 Cal.App.4th 286, 290-292; People v. Talamantes (1992) 11 Cal.App.4th 968, 971-972; People v. David (1991) 230 Cal.App.3d 1109, 1115; People v. Murray (1990) 225 Cal.App.3d 734, 738-739, 746; People v. Ricardi (1990) 221 Cal.App.3d 249, 253-254; People v. Brogna, supra, 202 Cal.App.3d at pp. 704-705; People v. McCarnes, supra, 179 Cal.App.3d at p. 532.)
Defendant claims, however, that the evidence of his DUI counseling programs was irrelevant because he completed them so long before the accident. He argues that whatever he may have learned in the programs about his level of impairment in 1990 had no tendency to show that he understood the danger of his impairment in 2004. We are not persuaded.
We acknowledge that under certain circumstances, remoteness may render a defendant’s prior conduct irrelevant for certain purposes. (E.g., People v. Thomas (1978) 20 Cal.3d 457 [evidence defendant molested one daughter 10 years before instant offense found too remote to be relevant to prove a common plan or scheme to molest all of his daughters], implicitly disapproved in People v. Thompson (1980) 27 Cal.3d 303, 317; see People v. Tassell (1984) 36 Cal.3d 77, 89, fn. 8, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401 [recognizing disapproval].) However, as defendant acknowledges, remoteness usually affects only the weight to be given evidence and not its admissibility. (People v. Caitlin (2001) 26 Cal.4th 81, 172.)
None of the numerous cases cited above suggests the admissibility of evidence of DUI programs hinges on its temporal proximity to the accident in question. Indeed, in People v. Johnson, supra, 30 Cal.App.4th 286, evidence that the defendant attended a DUI program 12 years before his accident was found relevant and admissible. (Id. at pp. 280-290.) Here, defendant started his 18-month program in 1998 and completed it in 2000. He committed his offenses in December 2004. Moreover, we consider it absurd to suggest that between 1998 and 2000, defendant was not thoroughly inculcated with the simple, if not obvious and self-evident, fact that driving under the influence is dangerous to the lives of others, but by 2004, he might have forgotten it.
In short, the trial court properly found that defendant’s DUI convictions, the curriculum of his later DUI program, and his lengthy participation in that program were relevant to show his knowledge. Moreover, because that evidence did not reveal any inflammatory facts about the prior convictions, the trial court properly found that the evidence was more probative than prejudicial. This is especially so because the court announced its intention to give, and later did give, an instruction advising jurors that the evidence could only be considered in determining defendant’s knowledge that drunk driving was dangerous and warned them not to consider it as evidence of defendant’s bad character or disposition to drive unlawfully.
Although those items of defendant driving record were relevant and admissible, we agree with defendant that his convictions for driving with a suspended license and the administrative suspension had no tendency to show defendant’s knowledge. The court admitted them because they were connected to his prior DUI convictions. However, such a connection does not reasonably imbue the latter convictions with relevant and probative value concerning defendant’s knowledge about the dangerousness of drunk driving at the time of the accident. At most, it shows knowledge that driving with a suspended license is unlawful. In our view, those convictions and the administrative suspension were no more relevant than the two similar suspended-license convictions and speeding convictions that the court excluded.
The question now is whether the admission of these convictions was prejudicial. We think not. First, driving with a suspended license, without more, is a fairly innocuous offense, and the evidence did not reveal details about those offenses that might have inflamed the jury or otherwise caused an emotional bias against defendant. Although the administrative suspension deemed defendant a “negligent operator,” the evidence did not reveal the factual basis for that characterization. Moreover, that label could not have caused any more bias against defendant than the evidence of his drunken and extremely reckless driving the night of the accident.
Second, any possibility that jurors might hold these additional convictions against defendant was negated by the court’s limiting instruction concerning the permissible and impermissible uses of the evidence. In the absence of evidence to the contrary—and there is no such evidence—we presume that the jury understood and followed this instruction. (People v. Panah (2005) 35 Cal.4th 395, 492; People v. Stanley (1995) 10 Cal.4th 764, 837.) Indeed, defendant concedes that the jurors probably followed the court’s instruction. For this reason, the prosecutor’s reference to those additional convictions during argument to the jury could not have been prejudicial.
Next, there was overwhelming evidence of implied malice murder. After Watson, supra, 30 Cal.3d 290, numerous courts have upheld drunk-driving murder convictions based on some or all of the following factors: (1) blood-alcohol level above the.08 percent legal limit; (2) a pre-drinking intent to drive; (3) actual knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving. (People v. Autry, supra, 37 Cal.App.4th at p. 358; People v. Talamantes, supra, 11 Cal.App.4th at p. 973.) For example, in People Olivas (1985) 174 Cal.App.3d 984, the court found evidence that the defendant consumed alcohol and PCP, drove at extremely high speed for a lengthy period of time, caused collisions and near collisions, and fled sufficient to show implied malice and support his murder conviction. (Id. at p. 989.)
Here, it is undisputed that defendant intended to drive home from work, and, having previously suffered two DUI convictions and completed DUI education programs, he nevertheless consumed alcohol and marijuana and then drove at high speeds for a significant period of time, swerved erratically from left to right across the freeway, nearly caused collisions, and drove off the freeway and onto an embankment and then back onto the freeway. Together this evidence constituted compelling proof of implied malice. Indeed, defense counsel conceded during final argument that defendant was guilty of gross vehicular manslaughter while intoxicated, which was also charged. That offense requires a finding that defendant drove in a way that created a high degree of risk of death or great bodily injury and that a reasonable person would have known that that conduct created such a risk. Thus, the only real issue at trial was whether defendant personally and subjectively knew what a reasonable person would have known under the circumstances and nevertheless disregarded that risk.
Finally, the jury had substantial bases to reject evidence suggesting that the accident may have caused by defendant’s concern for his son and effort to rush home to help his wife. In this regard, the defense offered no evidence to corroborate the timing of Rodriguez’s calls to defendant or her statement that their son was having a seizure that day. She told an investigator that after the accident, defendant sounded normal, sober, and so calm that she thought he was joking. She did not say that defendant asked about their son but only that he asked for a ride. Defendant also did not tell the CHP that he was rushing home to help his wife deal with their son. He simply said he had fallen asleep at the wheel. Moreover, in accordance with the court’s instruction, the jury could have found that being defendant’s wife, Rodriguez was biased in his favor. (See CALCRIM No. 226.)
The jury could have considered defendant’s friends biased in his favor. Moreover, any benefit from their opinion that he was a cautions and careful person was undermined by the undisputed how he drove on the night of the accident.
Under the circumstances, we do not find it reasonably probable that the jury would have reached a more favorable verdict on the second degree murder charges had the court excluded the evidence of defendant’s convictions for driving with a suspended license and his administrative suspension. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Given our analysis, we reject defendant’s claim that the erroneous admission of his driving record rendered his trial fundamentally unfair and thus compels review and reversal under the more stringent federal standard of review in Chapman v. California (1967) 386 U.S. 18, 24.
In a related claim, defendant asserts that the court later reversed its finding that defendant’s driving record was relevant and admissible. Given that reversal, defendant claims the court abused its discretion in failing to intervene to prevent the jury from considering the evidence before it reached a verdict.
Shortly before the end of trial, the court discussed the exhibits with the attorneys, defense counsel reiterated his objection to defendant’s driving record, but the court did not change its ruling. The parties then redacted references to items the court had excluded, and the court received the exhibits. Thereafter, they discussed some instructions, the prosecution called a rebuttal witness, the parties made their final arguments to the jury, and the proceedings were adjourned.
The next morning, the court instructed the jury, and it retired to deliberate. At that time, defense counsel complained that some of the court’s instructions overemphasized the evidence of defendant’s prior traffic offenses. In response the court said, “Well, before we move on, it’s my view that it’s probable that evidence has no relevance whatsoever in this case. If it has any, it bears only upon the question of defendant’s knowledge as it applies to the second degree murder charge.”
In our view, the court’s off-hand comment did not represent a ruling on the admissibility of the evidence or a formal reconsideration of its previous ruling. However, even if the court questioned the relevance of the evidence, we would find neither an abuse of discretion in failing to intervene nor prejudice in failing to do so. First, as discussed above, defendant’s prior DUI convictions and DUI education programs were highly relevant and far more probative of defendant’s knowledge than prejudicial. Thus, any second thoughts the trial court may have had about their relevance were unfounded. Second, although the court reasonably could have had second thoughts about the suspended-license convictions, its failure to intervene was reasonable because the limiting instruction would render the erroneous admission of those convictions harmless. For that reason, the alleged error in failing to intervene was also harmless.
IV. Instruction on Intoxication and Assumption of Risk
Defendant contends that the court erred in giving the following specially crafted instruction: “Voluntary intoxication is not a defense to any of the crimes charged in this case. When a person voluntarily causes his own intoxication, the person assumes the risk that while intoxicated his judgment, his ability to perceive risk and exercise caution, his ability to process and act upon information, and his physical abilities may be diminished.”
“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531, italics added; accord, People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Watie (2002) 100 Cal.App.4th 866, 881.) Conversely, the court “has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681, quoting People v. Satchell (1981) 6 Cal.3d 28, 33, fn. 10; People v. Barker (2001) 91 Cal.App.4th 1166, 1172, overruled in People v. Flood (1998) 18 Cal.4th 470.) Thus, “[i]t is error for a court to give an ‘abstract’ instruction, i.e., ‘one which is correct in law but irrelevant [.]’ [Citation.]” (People v. Rowland (1992) 4 Cal.4th 238, 282.)
Implied Malice Murder
Defendant claims the instruction is legally incorrect insofar as it imports a concept of assumption of the risk that finds no support in California law. He notes that in California, “[a] person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.” (CALCRIM Nos. 625, second italics added; CALCRIM No. 3426; see former CALJIC No. 4.22 [same content, slightly different wording]; People v. Wyatt (1972) 22 Cal.App.3d 671, 677.) According to defendant, this definition uses the concept of assumption of risk only as a means of determining whether a defendant was voluntarily intoxicated; and in that context, the only risk being assumed is that of becoming intoxicated. Defendant points out that the court’s instruction has nothing to do with the threshold issue of whether a defendant is voluntarily intoxicated and goes beyond the general risk of intoxication to enumerate specific types of risks that a voluntarily intoxicated person assumes. Defendant argues that there is no legal authority supporting either the content of the instruction or giving it.
It is not clear why the court felt it was necessary to craft this special instruction. We note that defendant was charged with both second degree, implied malice murder and vehicular manslaughter with gross negligence while intoxicated. In connection with the latter, the court instructed jurors that “[i]n evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any, the way the defendant drove, and any other relevant aspects of the defendant’s conduct,” indicating that the jury could consider the evidence of voluntary intoxication in determining gross negligence. We observe that the court crafted another instruction clarifying the difference between vehicular manslaughter with gross negligence while intoxicated and implied malice murder, explaining that to determine the former, the jury uses an objective test—i.e., would a reasonable person have been aware of the risk of danger to others—and to determine implied malice murder, the jury has to find that the defendant actually and subjectively appreciated the risk. This is the context in which the court gave the challenged instruction.
The first part of the instruction reflects section 22, which provides, “No 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.” (§ 22, subd. (a).) Accordingly, the court correctly instructed the jury that voluntary intoxication was not a defense to any of the crimes charged. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, §§ 1 – 254 [describing defenses to crimes].) Defendant concedes that “[v]oluntary intoxication is not per se a defense to any crime [citations], so the instruction’s first sentence was unobjectionable.”
Section 22 further provides that “[e]vidence 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....” (§ 22, subd. (b).) Because defendant was charged with implied malice second degree murder, evidence of voluntary intoxication was not admissible to negate implied malice, that is, to show that defendant did not act with knowledge of the danger to, and conscious disregard for, human life. (People v. Williams (2001) 26 Cal.4th 779, 789; People v. Conley (1966) 64 Cal.2d 310, 323-324; People v. Timms (2007) 151 Cal.App.4th 1292, 1302.) For this reason, the standard instructions on voluntary intoxication were inapplicable. (CALCRIM Nos. 3426 & 625.) Indeed, they might even suggest that evidence of voluntary intoxication could not be considered to show that defendant acted with implied malice.
CALCRIM No. 3426 states, in relevant part, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with [the specific intent to do the act required.] [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.” (Italics added.)CALCRIM No. 625 provides, in relevant part, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink or other substance, knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.” (Italics added.
If the court’s goal was to provide guidance concerning the permissible and impermissible uses of evidence of voluntary intoxication in connection with the implied malice murder charge, it failed because its special instruction provides no such guidance. Moreover, we agree with defendant that the instruction does not reflect any principle of law, let alone one that is closely and openly connected with the facts of the case and necessary to the jury’s understanding.
In support of the special instruction, the Attorney General reasons that if a person can willingly assume the general risk of becoming intoxicated and that general risk necessarily includes the specific risk of diminished abilities, perception, and judgment, then a person can also willingly assume those specific risks. Such an assumption is reasonable, the Attorney General argues, because we may presume that people know the hazards of drunk driving.
Although what the Attorney General says may be true, it does not provide legal support for the instruction. Nor does the Attorney General explain the relevance of the instruction or the purpose it may have served. Thus, we conclude that the court erred in giving it and turn to whether it was prejudicial.
Defendant argues that the instruction unfairly and impermissibly drew attention to the evidence of defendant’s voluntary intoxication and provided the conclusion they were supposed to draw from it: Defendant was legally responsible for his diminished faculties. Defendant further argues that this message tended to “devalue[]” other evidence that suggested that his careless driving and diminished faculties and judgment were caused by his concern for his wife and son, his overtiredness, and/or his belief that someone was after him on the freeway. Thus, defendant claims that the instruction “effectively directed—or at least permitted—jurors to ignore those valid factors” that otherwise might have raised doubt concerning whether he acted with implied malice. We disagree.
First, the content of the instruction is unquestionably true. When a person knowingly and voluntarily becomes intoxicated, he or she necessarily accepts the risks associated with being in that state, which include diminished or impaired motor skills, reaction time, sensory perceptions, and judgment. Thus, the instruction simply reflects common knowledge about the effects of intoxication.
Next, we note that the instruction applies only if, and when, the jury has found that the defendant was voluntary intoxicated. However, concerning that determination, the instruction does not identify any particular evidence, suggest that defendant was voluntarily intoxicated, or imply the jury should find that he was. On the contrary, the court expressly warned jurors “not [to] take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdicts should be.” (CALCRIM No. 3550.)
Next, the instruction provides that a voluntarily intoxicated person assumes the risk that “while intoxicated,” his or her abilities, perceptions, and judgment “may” be diminished. Thus, the instruction is limited: a voluntarily intoxicated person assumes the risk of diminished capacities caused by his or her state of intoxication. It does not suggest that a person assumes the risk of diminished capacities caused by other factors, circumstances, or conditions unrelated to intoxication; nor does the instruction direct, encourage, or permit jurors to disregard such factors, circumstances, and conditions or even suggest that they may do so in determining implied malice. The prosecutor certainly did not argue that the instructions should be applied in that way, and we find no reasonable likelihood that the jurors understood the instruction in that way. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [instructions erroneous where court finds reasonable likelihood that jurors would misunderstand them].) Indeed, the court instructed the jurors to “compare and consider all of the evidence that was received throughout the entire trial.” (CALCRIM No. 220, italics added.)
Concerning the other factors that the jury might have disregarded or at least undervalued, we note that any inference the jury might have drawn from Rodriguez’s testimony about their son’s seizure that day was, as discussed above, undermined by her potential bias, the lack of corroboration about the seizure, and, most tellingly, defendant’s failure to tell the CHP that he was rushing home to care for his son or even to express concern about him. Any inference from Rodriguez’s testimony about defendant not having slept the night before and from defendant’s statement he had fallen asleep were undermined by her bias and defendant’s testimony that he had had a full night’s sleep. And any inference from Rocha’s testimony that defendant feared he was being followed undermined by the fact that defendant had been driving recklessly long before his encounter with Rocha, the lack of evidence defendant knew Rocha was following him, and defendant’s failure to tell police that he thought he was being chased.
Finally, we note that during closing argument, defense counsel did not suggest that any of these factors diminished or affected defendant’s driving abilities, explained why he was driving so recklessly, or contributed to the accident. On the other hand, there was overwhelming evidence that defendant’s reckless driving was due to his being under the influence of alcohol and marijuana.
Under the circumstances, we do not find it reasonably probable the jury would have reached a more favorable verdict on the implied malice murder charges had the challenged instruction not been given. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Because we do not find that the instruction had a tendency to direct or permit jurors to disregard evidence that defendant might not have acted with implied malice or otherwise eliminated a relevant consideration in that regard, we reject defendant’s claim that the instruction violated defendant’s right to due process.
Hit-and-Run Driving
Defendant also claims the instruction was prejudicial concerning the charge of hit-and-run driving and the similar enhancement allegations. (Veh. Code, § 20001, subds. (b)(2) & (c).) This claim is based on the entire special instruction and focuses on the first statement that voluntary intoxication is not a defense to any of the charged offenses. Defendant concedes that this is legally correct but argues that the instruction was inadequate because it failed to explain that voluntary intoxication, though not a defense, could be considered in determining whether defendant had the requisite mental state for hit-and-run driving—i.e., actual knowledge that the accident had caused injury to another person.
Hit-and-run driving—whether charged as a crime or an enhancement—requires proof that (1) the driver was involved in an accident resulting another person’s serious injury or death; (2) the driver knew that he or she had been involved in an accident and either knew that someone was injured or should have known from the nature of the accident that such injury was probable; and (3) the driver willfully failed to stop, provide reasonable assistance, and/or notify the police or CHP without unnecessary delay. (CALCRIM No. 2140; People v. Hamilton (1978) 80 Cal.App.3d 124, 132, overruled on another ground in People v. Flood, supra, 18 Cal.4th at pp. 481, 484; CALCRIM Nos. 2140 [crime], 2160 [enhancement].)
Defendant acknowledges that section 22 permits evidence of intoxication only to negate specific intent, and hit-and-run driving is considered a general intent offense. (People v. Sheer (1998) 68 Cal.App.4th 1009, 1019.) However, citing People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza) and People v. Reyes (1977) 52 Cal.App.4th 975 (Reyes), defendant argues that, as used in section 22, specific intent broadly encompasses the knowledge element of general intent crimes, including hit-and-run driving. We disagree and find defendant’s reliance on Mendoza and Reyes to be misplaced.
Defendant also cites People v. Whitfield (1994) 7 Cal.4th 437, in which the court held that evidence of involuntary intoxication was admissible to negate implied malice. (Id. at p. 451.) However, that holding was abrogated by a subsequent amendment of section 22, which, as noted, now permits such evidence to negate express, but not implied, malice. (Mendoza, supra, 18 Cal.4th at p. 1125; People v. Timms, supra, 151 Cal.App.4th at pp. 1297-1298.)
In Mendoza, supra, 18 Cal.4th 1114, the issue was whether voluntary intoxication was admissible to negate the mental state required to establish liability as an aider and abettor. Before addressing it, the court opined that “[t]he division of crimes into two categories, one requiring ‘general intent’ and one ‘specific intent,’ is both simplistic (some crimes have other required mental states such as knowledge) and potentially confusing.” (Id. at pp. 1126-1127.) Citing People v. Hood (1969) 1 Cal.3d 444, at pages 456-457 (Hood), the court explained that “ ‘[w]hen the definition of a crime consists of only the description of a particular act, without reference to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ [Citation.]” (Mendoza, supra, 18 Cal.4th at p. 1127.) However, the court noted that under some circumstances, even this definition was an inadequate test, and the applicable scope of section 22 rested also on “policy considerations” concerning whether it is reasonable and appropriate to allow evidence of intoxication to relieve a person of criminal responsibility. (Id. at pp. 1127-1128.)
As an example, the court noted that in Hood, supra, 1 Cal.3d 444, the question was whether voluntary intoxication should be admissible to negate the mental element of assault. The Mendoza court pointed out that in concluding that it was not, the Hood court relied primarily on policy considerations and not the categorization of assault as a general intent crime. (Mendoza, supra, 18 Cal.4th at p. 1128.) In particular, the Hood court reasoned, “[A] drunk man is capable of forming an intent to do something simple, such as strike another, unless he is so drunk that he has reached the stage of unconsciousness. What he is not as capable as a sober man of doing is exercising judgment about the social consequences of his acts or controlling his impulses toward anti-social acts. He is more likely to act rashly and impulsively and to be susceptible to passion and anger. It would therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner.” (Hood, supra, 1 Cal.3d at p. 458.)
The Mendoza court noted that to be liable for aiding and abetting a crime, a person must know about the direct perpetrator’s criminal purpose and intend to facilitate it. The court opined that this mental state easily fit within the Hood court’s definition of specific intent. (Mendoza, supra, 18 Cal.4th at p. 1129.) Moreover, the court discerned no policy reasons against the use of voluntary intoxication to negate that knowledge and intent. The court explained, “Awareness of the direct perpetrator’s purpose is critical for the alleged aider and abettor to be culpable for that perpetrator’s act. A person may lack such awareness for many reasons, including intoxication. A person who is actually unaware that his or her noncriminal act might help another person commit a crime should not be deemed guilty of that crime and all of its reasonably foreseeable consequences even if intoxication contributes to, or is the sole reason for, that lack of awareness.” (Ibid., italics in Mendoza.)
The court explained that in Hood, in contrast, “we were concerned that a ‘drunk’ person should not be relieved of responsibility for criminal acts that are frequently committed because the person is drunk. Justice Mosk expressed a similar concern in [People v. Whitfield, supra, 7 Cal.4th at p. 463 (conc. and dis. opn. of Mosk, J.)]: ‘[A]lcohol intoxication naturally lends itself to the crime’s commission because it impairs the sound judgment or lowers the inhibitions that might stop a sober individual from committing a highly dangerous act leading to another’s death.’ [Citation.] This concern does not have the same force regarding an alleged aider and abettor as it has regarding the person who actually commits the dangerous act. Anyone, including a drunk person, who knowingly and intentionally aids and abets a criminal act is guilty. Intoxication is relevant only to show the person did not act knowingly and intentionally. A drunk person does not unknowingly and unintentionally help others commit crimes significantly more often than other persons.” (Mendoza, supra, 18 Cal.4th at p. 1130, italics in Mendoza.)
In Reyes, supra, 52 Cal.App.4th 976, which was decided before Mendoza, the issue was whether voluntary intoxication was admissible in a prosecution for receiving stolen property to negate knowledge that the property was stolen. (People v. Grant (2003) 113 Cal.App.4th 579, 596 [knowledge is an element].) Relying on Hood, supra, 1 Cal.3d 444 and People v. Whitfield, supra, 7 Cal.3d 437, the court held that “with regard to the element of knowledge, receiving stolen property is a ‘specific intent crime,’ as that term is used in section 22, subdivision (b)....” (Reyes, supra, 52 Cal.App.4th at p. 985.) Thus, voluntary intoxication was admissible to negate it. (Ibid.)
Turning to this case, we note that unlike the mental element for aiding and abetting, the knowledge element of hit-and-run driving does not fit within Hood’s definition of specific intent, in that the definition of that offense does not refer to the “defendant’s intent to do some further act or achieve some additional consequence....” (Hood, supra, 1 Cal.3d at pp. 456-457; People v. Davis (1995) 10 Cal.4th 463, 518, fn. 15.) Moreover, the policy consideration discussed in Hood applies with equal force here and militates against the use of voluntary intoxication to negate knowledge that an accident caused injury. Like assault, hit-and-run driving frequently is committed by those who have caused an accident while driving under the influence. Thus, in our view, it would be just as “anomalous” to allow voluntary intoxication to relieve a drunk driver of responsibility for fleeing the scene as it is to allow voluntary intoxication to relieve a defendant of responsibility for an assault.
We acknowledge that the knowledge element of receiving stolen property discussed in Reyes also does not fit within Hood’s definition of specific intent. However, the holding in Reyes is nevertheless understandable because, unlike assault or hit-and-run driving, receiving stolen property is not ordinarily the type of crime that is frequently committed by those who are under the influence. Thus, policy considerations do not militate against the use of voluntary intoxication to negate knowledge that property is stolen.
Mendoza and Reyes are inapplicable for yet another reason. In both cases, the offenses required actual knowledge—in Mendoza, knowledge of the perpetrator’s criminal design; in Reyes, knowledge of the nature of the property. However, in People v. Holford (1965) 63 Cal.2d 74, the California Supreme Court observed, “[T]he driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses any opportunity to acquire such actual knowledge. Hence a requirement of actual knowledge of injury would realistically render the statute useless. We therefore believe that criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.” (Id. at p. 80, fn. omitted, italics added.) In other words, a conviction for hit-and-run driving does not require actual or subjective knowledge that another person has been injured. Rather, “[s]uch knowledge... may be imputed to the driver of a vehicle where the fact of personal injury is visible or obvious, or where the seriousness of the collision would lead a reasonable person to assume that there must have been resulting injury.” (People v. Ryan (1981) 116 Cal.App.3d 168, 180, italics added.)
Since jurors, in determining whether the defendant had the requisite knowledge that an accident caused injuries, may apply an objective standard based on what a reasonable person would assume from the seriousness of the accident, it does not matter whether, as a result of impairment due to voluntary intoxication, a defendant was subjectively unaware that his or her accident caused injuries. Indeed, where the evidence supports a finding that a reasonable person would have known that the accident probably caused injuries, a defendant may be convicted of hit-and-run driving even if the evidence established that he was subjectively unaware of that fact.
Defendant did not argue below and does not now suggest that at the time he fled, he was unaware that he was in a serious accident; nor could he reasonably do so, given the nature of his driving, the condition and position of his vehicle after the accident, and the evidence that he looked around immediately after the accident and then ran.
In sum, Mendoza and Reyes do not support defendant’s claim that the court erred in failing to instruct the jury that voluntary intoxication could be considered in determining whether defendant knew his accident had injured another person.
Moreover, even if we assume that the court should have given such an instruction, we would not find that its failure to do so was prejudicial.
Defendant argues that the omission was prejudicial because (1) his “subjective knowledge” that a person had been injured was a key issue; (2) the evidence that he had actual knowledge was entirely circumstantial; and (3) given the evidence of diminished perception and reaction time due to voluntary intoxication, jurors might have found that after the accident, defendant was in shock and did not fully comprehend the extent of the collision and its effects until after he fled from the scene. We disagree.
First, there was strong circumstantial evidence that defendant knew the accident had caused injuries. It is undisputed that defendant swerved and directly collided with the victim’s vehicle, causing it to skid and roll over and defendant to lose control and roll over. Three passengers were ejected. Nick Rocha, who stopped near the scene, testified, “I went to see if I could see anybody moving or anything. I walked across, and that’s when I seen [defendant’s vehicle] turned over on—with the wheels up. But before I got to that, I saw the little girl—or one of the passengers that had been on—in the van, a small child, and she was in a puddle of blood.” He then went over to defendant’s vehicle. It was empty, but he saw the shadow of someone leaving the scene. Acuna testified that after the accident, she saw defendant get out of his SUV. He then “glanced at everything” and started to run.
Next, regardless of whether defendant actually knew the accident had caused injury, there was overwhelming evidence that a reasonable person in defendant’s position certainly would have known not only that the accident had been serious but also that it probably resulted in injuries to those in the other vehicle, especially after a survey of the aftermath.
Last, defense counsel did not suggest that defendant was unaware that the accident caused injuries and, therefore, should not be convicted of hit-and-run driving. Indeed, counsel offered no specific defense to the charge or enhancement allegations.
Under the circumstances, we do not find it reasonable probable that defendant would have obtained a more favorable verdict or finding had the jury been allowed to consider voluntary intoxication in determining the charges and enhancements related to hit-and-run driving. (People v. Watson, supra, 46 Cal.2d at p. 836.)
V. Requested Instruction on Implied Malice
Defendant contends that the court erred in rejecting his proposed instruction defining implied malice. Defendant requested the following instruction: “Implied malice is shown if you find beyond a reasonable doubt that the defendant, for a base, anti-social motive and with wanton disregard for human life, committed an act that involves a high probability that it will result in death....” (Italics added.) The court declined it and instead gave the standard instruction, CALCRIM No. 520, which, as given, stated, “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 that his act was dangerous to human life; and, four, he deliberately acted with conscious disregard for human life.” (Italics added.) We find no error.
“ ‘[I]mplied malice has both a physical and mental component’ ”—i.e., the doing of an act with a particular mental state. (People v. Taylor (2004) 32 Cal.4th 863, 868; People v. Hansen (1994) 9 Cal.4th 300, 308.) Defendant’s proposed instruction and the court’s instruction reflect alternative judicial reformulations of the statutory definition of implied malice, which courts consider to be cryptic, amorphous, unworkable, and potentially confusing. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 (Nieto Benitez); People v. Phillips (1966) 64 Cal.2d 574, 587 (Phillips), overruled on other grounds in People v. Flood, supra, 18 Cal.4th at p. 490, fn. 12; People v. Protopappas (1988) 201 Cal.App.3d 152, 162-163.)
Section 188 provides, in relevant part, that malice “is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”
Defendant’s instruction reflects the formulation of implied malice by Justice Traynor in his concurring opinion in People v. Thomas (1953) 41 Cal.2d 470 at page 480. This formulation is known as the Thomas test. (People v. Knoller (2007) 41 Cal.4th 139, 151-152 (Knoller) [explaining the background of and naming of the two tests]; Nieto Benitez, supra, 4 Cal.4th at pp. 103-104; e.g., People v. Poddar (1974) 10 Cal.3d 750, 756-757 [using the Thomas test], overruled on another point in People v. Saille (1991) 54 Cal.3d 1103, 1113-1114.) Under it, the physical component of implied malice requires the commission of an act that involves a high probability of death.
The court’s instruction is based on the formulation articulated in Phillips,supra, 64 Cal.2d at page 587 and is known as the Phillips test. (Knoller, supra, 41 Cal.4th at pp. 151-152; Nieto Benitez, supra, 4 Cal.4th at pp. 103-104; e.g., People v. Sedeno (1974) 10 Cal.3d 703, 719 [using Phillips test], overruled or disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Breverman, supra, 19 Cal.4th 142, 163, fn. 10; and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Under that test, the physical component of implied malice requires the commission of an act whose natural consequences are dangerous to life.
As the Attorney General points out, the California Supreme Court considers both formulations to be essentially correct articulations of the applicable standard, including the physical component. (Nieto Benitez, supra, 4 Cal.4th at p. 111; People v. Dellinger (1989) 49 Cal.3d 1212, 1217-1221; Watson, supra, 30 Cal.3d 290, 300; People v. Curtis (1994) 30 Cal.App.4th 1337, 1353; People v. Cleaves (1991) 229 Cal.App.3d 367, 378; People v. McCarnes (1986) 179 Cal.App.3d 525, 530-531.) Moreover, although the two tests are both deemed correct, the Supreme Court has expressly stated its preference for the more direct and straightforward language of the Phillips test. (Knoller, supra, 41 Cal.4th at p. 152.)
Although a trial court’s duty to deliver a requested instruction is greater than its obligation to instruct sua sponte, the court may properly refuse requested instructions that are redundant, repetitious, argumentative, or potentially misleading or that are simply elaborations on general instructions on matters that are adequately covered by other instructions. (People v. Bolden (2002) 29 Cal.4th 515, 556-559; People v. Gurule (2002) 28 Cal.4th 557, 659; People v. Sanders (1995) 11 Cal.4th 475, 560; People v. Wright (1988) 45 Cal.3d 1126, 1134; People v. Thongvilay (1998) 62 Cal.App.4th 71, 82; People v. La Fargue (1983) 147 Cal.App.3d 878, 886.)
Given the legal equivalency of the Thomas and Phillips tests and the Supreme Court’s preference for the Phillips test, we conclude that the trial court properly declined to give defendant’s proposed instruction either instead of the standard instruction or in addition to the standard instruction. Indeed, giving both could have confused and misled the jury.
Defendant’s claim of error is based on the observation by Justice Mosk in his concurring opinion in Nieto Benitez, supra, 4 Cal.4th at pages 112-115. In his concurrence, Justice Mosk agreed with the majority that the Phillips test correctly defined implied malice and that the Phillips instruction was not defective in omitting the “ ‘high probability of death’ ” language of the Thomas test. However, Justice Mosk opined that the “high probability” language better described the physical component of implied malice. (Id. at pp. 112, 115.) Moreover, he was concerned that in certain cases, it might be harder for jurors to understand the “conscious disregard” language than the “ ‘high probability of death’ ” language because the former is more abstract and technical, which, in turn, might cause jurors to misconstrue and misapply the applicable standard and cloud their ability to discern whether the facts warrant a murder conviction. (Id. at p. 114 & fn. 3.)
Justice Mosk explained that although “there was no such likelihood here, in another case a reasonable likelihood may arise. Consider a situation in which, in a remote part of a rural county, a hunter, for no apparent reason, fired a bullet into the air at a 45-degree angle, causing a human death on the ground some distance away. The act was illegal because it ‘could result in injury or death’ [citation], and was somewhat dangerous even though performed in a thinly populated area. But let us further hypothesize that death as a result was a freak occurrence: there was uncontested evidence that the bullet was far more likely to strike the ground or a tree than a human being. There was no high probability that the act would result in death; the act’s natural consequences were not dangerous to human life. But the ‘natural consequences dangerous to life’ language is vague enough to those unschooled in the nuances of the law of homicide that a lay jury might nevertheless vote to convict the hunter of implied-malice murder. If a reviewing court concluded there was a reasonable likelihood the jury misconstrued the instruction, the judgment of conviction would be reversed. [¶] Under the previous versions of those instructions—which gave the high probability language [citation]—the jury would readily understand the task it faced, for the language was forthright and clear.” (Id. at pp. 114-115.)
Defendant’s reliance on Justice Mosk’s discussion is misplaced. As noted, Justice Mosk was concerned that there could be situations where jurors might find implied malice under the broad, technical, and abstract “conscious disregard” language where they would not have so found under the clearer, high-probability-of-death language.
Such a concern does not reasonably arise in this case because the circumstances of defendant’s conduct are so different from the freakish hypothetical scenario imagined by Justice Mosk, in which a jury might misunderstand and misapply the concept of implied malice. Instead of shooting a rifle into the air in a remote rural area, defendant recklessly sped down the freeway for miles under the influence of alcohol and marijuana, wildly weaving from left to right, driving on and off the freeway, and narrowly missing cars as he passed them. In our view, the “conscious disregard” language of the standard instruction is not so technical and abstract that it might have clouded the jurors’ ability to discern whether the facts warranted a murder conviction. Nor do we find that without the “high probability of death” language, jurors might have misunderstood, misconstrued, or misapplied the criminal act element of implied malice. Indeed, given defendant’s conduct, we find no reasonable possibility that a juror might find implied malice under the Phillips test but not under the Thomas test, that is, found that the natural consequences of defendant’s reckless drunk driving were dangerous to human life but not find that his dangerous driving involved a high probability of death. This is especially so because here the jury found that defendant drove with gross negligence, which required a finding that he drove in a reckless way that created “a high risk of death, or great bodily injury.”
For this reason, we would find any error in rejecting defendant’s proposed instruction to be harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Defendant also relies on two law journal articles that favor the Thomas test over the Phillips test. (Hobson, Reforming California’s Homicide Law (1996) 23 Pepperdine L.Rev. 495; Mounts, Malice Aforethought in California: A History of Legislative Abdication and Judicial Vacillation (1999) 33 U.S.F.L.Rev. 313.) However, his discussion of those articles does not convince us that our analysis in incorrect or that the court erred in rejecting his proposed instruction.
VI. The Instruction on the Union of Act and Intent
Defendant contends that the court’s instruction on the union of criminal act and intent was defective.
The court instructed the jury, “Every crime or allegation charge in this case requires proof of the union or joint operation of the act and wrongful intent. All of the crimes, except Counts One and Two, which are the second degree murder charges, require general criminal intent. [T]o be guilty of these offenses—and I’m referring to every crime other than second degree murder—a person must not only commit the prohibited act, or fail to do the required act, but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime or allegation.[¶] The following crimes—and I’m referring here to Counts One and Two, the second degree murder charges—require a specific mental state. To be guilty of these offenses, a person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific mental state. The act and the mental state required are explained in the instructions for each crime or allegation.” (Italics added; see CALCRIM No. 252.)
Defendant notes that the charge and enhancement allegations required more than the general intent to commit an act or omission; they required knowledge that the defendant had been involved in an accident causing injury. Defendant points out that the CALCRIM Bench Note for the instructions on general and specific intent and the required concurrence of act and intent advises that “[i]f a crime requires a specific mental state, such as knowledge or malice, the court must insert the name of the [offense or enhancement requiring that mental state], even if the crime is classified as a general intent offense.” (CALCRIM No. 252 (2008), Bench Notes, p. 69 [check citation form].) Defendant argues that in referring to the hit-and-run driving as a general intent crime, the court indicated that the prosecutor only had to prove the intent to flee and not also knowledge of the accident. Thus, he claims that, in effect, the court eliminated the knowledge element of the offense and enhancements.
In analyzing a claim of inadequate instructions, we do not focus on a single instruction but instead review the entire charge to the jury in light of the evidence and the arguments of counsel to determine whether there is a “ ‘reasonable likelihood’ ” that the jury understood the instructions in the manner proposed by the defendant. (Estelle v. McGuire, supra, 502 U.S. at p. 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
We agree with defendant that the court should have followed the direction of the Bench Note and told jurors that the prosecutor had to prove both intent to flee and knowledge about the accident. (See People v. Alvarez (1996) 14 Cal.4th 155, 220 [duty to give proper instruction on concurrence of act and intent].) However, the instruction, as given, did not state that the prosecutor had to prove only intent. Moreover, the instruction referred jurors to the specific instructions on the charge and enhancements, and those instructions expressly informed the jury that the prosecution had to prove knowledge. (CALCRIM Nos. 2140, 2160.) The jurors were also told to consider the instructions together.
Thus, we find no reasonable likelihood that the jury would consider the concurrence instruction in isolation and misunderstand it to eliminate the knowledge element. Rather, we find it likely that, in accordance with the court’s instructions, the jury understood that the prosecution had to prove knowledge beyond a reasonable doubt.
Defendant also argues that because the instruction did not refer to the knowledge element, it erroneously eliminated the requirement of concurrence between the prohibited act and knowledge about the accident.
Even if we assume for purposes of argument that the court’s instruction was flawed in that respect, the absence of an essential element in one instruction may be cured by other instructions, where those instructions require jurors to resolve the factual question that would have been posed, jurors have the facts and means necessary to make that determination beyond a reasonable doubt, and the instructional omission does not prevent them from doing so. (People v. Castillo (1997) 16 Cal.4th 1009, 1016; People v. Cummings (1993) 4 Cal.4th 1233, 1313; People v. Garrison (1989) 47 Cal.3d 746, 789-790; People v. Burgener (1986) 41 Cal.3d 505, 539, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.)
Such is the case here. The court’s instruction on hit-and-run driving stated, in relevant part, “To prove that the defendant is guilty of this crime, the People must prove that, one, while driving[,] the defendant was involved in an accident; two, the accident caused the death of or permanent serious injury to someone else; three, the defendant knew that he had been involved in an accident that injured another person; or knew from the nature of the accident that it was probable that another person had been injured; and four, that the defendant willfully failed to perform one or more of the following duties: [stop, provide reasonable assistance, or notify authorities].” (Italics added; see CALCRIM No. 2140.)
Clearly, the jury was required to find that defendant knew the accident had caused injury; and that after the accident, he fled with the intent do to so. Although the instruction did not explicitly require a finding that the defendant fled knowing about the accident, we find that requirement obvious and inherent in the charge: what makes the failure to stop or perform required duties wrongful is that it is done with actual or constructive knowledge. In our view, therefore, the instruction on the elements of the charge adequately conveyed, and the jury would have understood the requirement of concurrence of act, intent, and knowledge. Thus, in convicting defendant, the jury necessarily resolved that factual issue that a proper concurrence instruction would have posed. Accordingly, we find the omission harmless under any standard of review. (People v. Flood, supra, 18 Cal.4th at p. 503, criticized on another ground by People v. McCall (2004) 32 Cal.4th 175, 187, fn. 14, citing the federal standard under Chapman v. California (1967) 386 U.S. 18, 24; People v. Bunyard (1988) 45 Cal.3d 1189, 1228, fn. 27, citing the state standard under People v. Watson, supra, 46 Cal.2d at p. 836.) This is especially so given our discussion of the strong evidence showing defendant’s actual and constructive knowledge about the accident before he fled the scene.
VII. Upper Term for Driving While Intoxicated
Defendant contends that the court violated his right to a jury trial by imposing an upper term for count 5—driving while intoxicated, in violation of Vehicle Code section 23153—based on its own factfinding rather than on facts found by the jury beyond a reasonable doubt or admitted by defendant himself.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crimes beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” (Id. at p. 490; accord, Blakely v. Washington (2004) 542 U.S. 296, 301 [applying Apprendi rule to sentencing scheme that gave court discretion to impose elevated sentences based its own findings].) In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court held that California’s Determinate Sentencing Law (DSL) violated the Sixth Amendment right to a jury trial insofar as it authorized a trial court, and not the jury, to find facts that exposed the defendant to an elevated upper term sentence. (Id. at pp. 292-293.)
In imposing the upper term, the trial court stated, “As to Count Five, the [Vehicle Code section] 23153, driving while intoxicated with injury, the driving simply could not have been anymore [sic] egregious or horrible, or dangerous. The driving itself is an aggravating factor that outweighs any other factor, any other consideration. The Court selects the upper term of three years in state prison.”
Defendant asserts that the court’s finding that defendant’s driving could not have been more “egregious,” “horrible,” and “dangerous” does not correspond to any finding by the jury or any of the aggravating sentencing factors enumerated in the California Rules of Court. (See Cal. Rules of Court, rule 4.421 [circumstances in aggravation].)
As defendant acknowledges, the enumerated list of aggravating factors is not exclusive, and the court may rely on other criteria as long as it expressly identifies them at sentencing on the record. (Cal. Rules of Court, rule 4.408.) Driving under the influence and causing injury does not require that one drive in a reckless or even dangerous or negligent manner. Thus, where one commits that offense by driving in a particularly egregious, horrible, reckless, and dangerous way, the manner of driving reasonably may be considered an aggravating circumstance that warrants an elevated term. In our view, this was the factual basis for the court’s sentencing choice.
Although the court opined that defendant’s driving “could not have been any more” egregious, horrible, or dangerous, we do not read that statement literally as a qualitative finding that he could not have driven any worse then he did. Obviously, he could have been even more reckless and caused even more damage, injury, and/or death. Rather, we understand the court’s determination to be that defendant’s driving was particularly egregious, horrible, and dangerous.
The Attorney General argues that “[s]ince the jury found appellant guilty of murder, gross vehicular manslaughter while intoxicated and leaving the scene, driving under the influence of drugs or alcohol and causing injury, driving with a blood alcohol level of 0.08 percent and more with injury, and hit and run resulting in permanent serious injury, it necessarily believed the horrified and frightened citizens who had the misfortune of witnessing appellant drive drunk on the highway.... [¶] Thus, the aggravating circumstances that appellant’s driving ‘simply could not have been anymore egregious or horrible, or dangerous’ was inherent in the jury’s verdict of guilt on count 5 and fully satisfied the requirement in Cunningham.”
The jury’s verdict reflects findings of implied malice—i.e., that defendant drove his vehicle in a way that was dangerous to human life and with conscious disregard for human life—gross negligence—i.e., that he drive in a reckless way that created a high risk of death or great bodily injury and was indifferent to the consequences. When viewed in light of the evidence of how defendant drove, the jury’s findings reasonably encompass a finding that defendant’s driving was particularly egregious, horrible, and dangerous.
However, even if we agree with defendant that the jury was not asked to make such a finding and its verdict did not implicitly include that finding, the imposition of an aggravated term based solely on the court’s own findings would not compel reversal and a remand for resentencing.
The imposition of an aggravated term in violation of Cunningham does not compel reversal if the reviewing court “concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury....” (People v. Sandoval (2007) 41 Cal.4th 825, 839.)
Given the undisputed evidence concerning defendant’s driving, we have no reasonable doubt that a jury would have found true beyond a reasonable doubt an allegation that defendant’s driving was particularly egregious, horrible, and dangerous. Accordingly, any Cunningham error was harmless.
VIII. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J. MIHARA, J.
According to Hardee, Rodriguez further said that defendant called her back within five minutes of her 4:30 call. At that time, she was frantic and said that their son was having a seizure. He calmed her down, advised her to administer his medication, and said everything would be all right. Rodriguez said that defendant called again around 5:00 p.m. and said he was on his way home. The next time she spoke to him, he said there had been an accident. She thought he was joking because he was so calm. He asked to talk to his father because he needed a ride.