Opinion
D074562
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. ESTEYSI SANCHEZ, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN361140) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed with directions. Anthony J. Dain, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Esteysi Sanchez of second degree murder (Pen. Code, § 187, subd. (a)); count one), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count two), and hit and run with death or permanent serious injury (Veh. Code, § 20001, subd. (b)(2); count three). The jury also found true the allegations as to count two that Sanchez fled the scene of the crime (Veh. Code, § 20001, subd. (c)) and personally inflicted great bodily injury upon the victim (§ 1192.7, subd. (c)(8)). The court sentenced Sanchez to an indeterminate prison term of 15 years to life for count one; the sentences for counts two and three were stayed pursuant to section 654.
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
On appeal, Sanchez contends: (1) insufficient evidence of implied malice supported the second degree murder conviction; (2) the court improperly responded to the jury's second question about implied malice; and (3) the abstract of judgment should be amended to reflect the correct direct victim restitution amount of $2,123.50. We agree with (3) but reject (1) and (2). We therefore affirm the judgment but direct the trial court to amend the abstract of judgment as set forth below.
FACTUAL AND PROCEDURAL HISTORY
A. Sanchez's Night Out and Alcohol Consumption
At 6:00 p.m. on Sunday, June 26, 2016, Sanchez and her husband were at dinner when she told him she was going out with a girlfriend that evening. Her husband stayed home with the children because he had to work early the next morning. As a result, Sanchez told him she would be home between 2:00 a.m. and 3:00 a.m. At 8:51 p.m., Sanchez posted on her social media account, "I need one drink or maybe two. Um, ha ha." Sanchez left shortly thereafter; her friend Maritza picked her up from her home in Oceanside and drove them to a nightclub in San Marcos. They arrived at the nightclub at 11:00 p.m.
At the nightclub, Sanchez drank two or three "mixed drinks" called "sex on the beach" and had a "shot of tequila." She later drank a second "shot," which she poured into a third "mixed drink." Her last drink at the nightclub was at 1:45 a.m. the following Monday, June 27; she stayed there until it closed at 2:00 a.m.
Carlos R. was also at the nightclub that evening with his friend Marino. Carlos greeted Sanchez inside and spoke to her again outside after the nightclub closed. He and Sanchez continued talking and texting over the phone while he was on his way home. When she asked what he and Marino were going to do the rest of the evening, he responded they were going to continue drinking at a motel in Oceanside and invited her to come. Sanchez said she would meet him there.
Yadira O. was at home when Sanchez contacted her from the nightclub at around 2:00 a.m. or 3:00 a.m. Sanchez told Yadira to "get ready" and said she was going to pick her up so they could drink at a motel. Yadira told Sanchez she was tired, was "not ready," and Sanchez should have contacted her earlier that day. However, Sanchez persuaded her to come out.
On the way back home from the nightclub, Sanchez drank a beer while her friend Maritza drove. After being dropped off, Sanchez went straight to her car and drove to pick up Yadira. However, she had a hard time finding Yadira's house, so they met at a different location. Sanchez was drinking a beer when she picked Yadira up. Sanchez then drove them to the motel. At 3:30 a.m., they arrived at the motel parking lot and drank beer with Carlos and Marino as they all waited for the room.
After entering the room, they all continued drinking beer, listened to music, and played a game. Sanchez drank two or three more beers. The game eventually ended and the four of them paired off into couples. Sanchez did not sleep the entire time she was at the motel.
B. The Morning of the Collision
At 5:00 a.m., Sanchez's husband woke up and noticed her car was not in the driveway. At trial, he explained Sanchez drove her car often, including during late nights out with friends. He called Sanchez to check on her whereabouts and see if she could take care of the children so he could go to work. She called him back and told him, "I'm drunk." As a result, he hung up the phone and asked his older child to watch the younger child while he went to work.
Carlos and Yadira both testified Sanchez received multiple telephone calls from her husband that morning. Sanchez told them she had to go home because of her kids. Yadira told Sanchez not to leave because Sanchez was drunk. She also told Sanchez they would call her a taxi or rideshare and come back for her car later. Carlos also told Sanchez to rest and stay in the room so she would not drive drunk. He told Sanchez, "Don't go, don't go, you're drunk." Still, Sanchez told him she had to leave.
Carlos followed Sanchez out of the room and told her not to drive at least three or four times. He also said he would call her a taxi or give her a ride home. At one point, he even tried to direct her back toward the doorway and inside the room. As he followed her downstairs, Sanchez became "aggressive," had an "attitude," and was upset he was telling her to stay. Due to her hostile demeanor, Carlos went back to the room to grab his phone. When he looked out the window, he noticed Sanchez had already left. Sanchez left the motel about 30 or 40 minutes after receiving the telephone calls from her husband.
The prosecution played a video recording of Sanchez's car entering and exiting the motel parking lot for the jury.
At 6:14 a.m., Sanchez called her husband again. During the call, Sanchez told him, "I hit someone," "[h]e's in my car," and "I think he's dead." Sanchez was crying and hysterical, and did not know where she was at. Her husband told her to stay put and call the police. She responded, "no[,] I'm going home," and told him she was "really scared."
C. Sanchez's PostCollision Conduct
At approximately 6:25 a.m., Edwin E. was standing in front of his garage when he heard a screeching noise coming from around the corner and saw Sanchez's car approaching his house. One of the car's tires was flat—Sanchez rode on the tire's rim as she drove past several houses on a residential street in Oceanside and eventually stopped at the end of the street. Several bystanders saw Sanchez step out of her car, screaming and crying hysterically. She was on the phone, looking around, and "talking gibberish." Edwin's mom tried to calm Sanchez down while he tried to get Sanchez to sit down on the curb, but Sanchez kept crying and walking.
Edwin then looked at Sanchez's car and saw a deceased person in the passenger seat and a severed foot. As a result, he immediately started recording the incident with his phone. He told his mother to call the police; she dialed 911 and he spoke to them. Sanchez left the scene on foot before the police arrived.
The prosecution played the video recording for the jury.
D. Sanchez's Statements to Law Enforcement
Later that morning, two Oceanside police officers interviewed Sanchez at her home, which was located about three-quarters of a mile away from where she had left her car. Sanchez was sitting on the front porch of her residence when the second officer arrived; she appeared nervous, was crying and had debris in her hair.
During the interview, the officer asked Sanchez if she was "going to tell [them] what happened," to which she responded, "I was drunk." The officer then asked Sanchez why she came to her house. Sanchez initially said she did not know what the officers were talking about, but eventually said "it was an accident," she did not "exactly know what happened," and reiterated she was drunk. She also said she knew she had a person inside of her car.
Sanchez then told the officers about the amount and type of alcohol she consumed at the nightclub. She said that after the nightclub, she "went home to get her car" so she could meet friends at a local motel. She continued drinking at the motel and did not sleep the entire time she was there. After about an hour, she left the motel alone and drove toward her home, but did not know what happened next. She explained, "I woke up when I felt glass all over my face and right side. And the next thing I knew, there was a person next to me in the passenger seat." She continued, "I don't know how he got there. So I panicked. And I drove away and called my [baby's father]." She said she then went home and changed clothes before the police arrived.
During the interview, Sanchez asked the officer if the person in her car had died. When the officer told her he had, Sanchez got "really upset," started crying, and called herself a "murderer." Attempting to calm her down, the officer told Sanchez she did not "do it intentionally," to which Sanchez responded she "just wanted to go to [her] house and now [she] can't."
Sanchez also told the officer she had failed her driver's license test approximately three months before the collision and had scheduled a future appointment. When the officer asked if she knew she did not have a driver's license, she responded, "Yes. I knew." She followed up with, "That's why I would never drive. I would never drive the car when I went out. But since I had been drinking, I just took it."
E. Sanchez's Level of Intoxication
At 8:00 a.m., an Oceanside police officer obtained breath samples from Sanchez using a Preliminary Alcohol Screening device, which yielded results of .18 and .19 percent blood-alcohol content. At 9:15 a.m., the officer also administered several Field Sobriety Tests to Sanchez, all of which indicated she was impaired by and under the influence of alcohol. A chemical analysis of Sanchez's blood taken at 9:52 a.m. was .182, which was reported as .17 percent. A criminalist also testified that Sanchez's blood- alcohol concentration would have been between .20 and .29 at 6:15 a.m., the approximate time of the collision.
F. The Scene of the Collision
An Oceanside police officer investigated the scene of the collision. There were tire friction marks on the roadway indicating either excessive accelerating, braking too hard, or turning the wheel while the car continued moving forward. At trial, the officer explained tires leave rubber marks on asphalt when the driver suddenly turns the wheel but is going too fast to maneuver that turn safely. A torn pair of trousers, shoes, a watch, a key fob, and a wallet with the victim's identification card were also found at the scene. The officer concluded from the physical evidence found at the scene and Sanchez's statements that she drove eastbound down the roadway, went over the curb and traveled along the sidewalk and partially into the dirt area on the south side of the roadway for about one hundred feet, striking the victim, and then returned to the roadway and continued eastbound thereafter.
G. The Location of Sanchez's Car
The investigating officer went to the location of Sanchez's car, which was located between three-quarters of a mile and a mile and a half east of the collision scene. The officer identified the deceased person in Sanchez's car with the identification card found at the collision scene. The damage to Sanchez's car and other pieces of physical evidence found at the location were consistent with a person being hit on the sidewalk by the car. The parties stipulated there were no mechanical deficiencies of Sanchez's car that caused the collision.
H. The Autopsy
A deputy medical examiner performed an autopsy on the victim. The examiner determined the victim's cause of death to be multiple blunt force trauma. He noted multiple injuries to the victim's head and body, the most significant of which was a fatal skull base fracture. The fatal injury was consistent with a pedestrian being struck by a motor vehicle. The victim's right leg was also amputated between the knee and ankle. A toxicology test revealed the victim was negative for any alcohol and drugs.
DISCUSSION
I. Sufficiency of the Evidence
Sanchez contends insufficient evidence of implied malice supported her second degree murder conviction.
A. Legal Principles
"In reviewing the sufficiency of the evidence, we must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Wolfe (2018) 20 Cal.App.5th 673, 681 (Wolfe).) "It is the jury, not an appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (Ibid.) Accordingly, we do not substitute our judgment for that of the jury or reverse "merely because the evidence might also support a contrary finding." (Ibid.)
A second degree murder conviction requires malice aforethought. (§ 187, subd. (a).) Malice may be either express or implied. (§ 188.) "A person who, knowing the hazards of drunk driving, drives a vehicle while intoxicated and proximately causes the death of another may be convicted of second degree murder under an implied malice theory." (People v. Batchelor (2014) 229 Cal.App.4th 1102, 1112 (Batchelor).)
" 'Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger.' " (Wolfe, supra, 20 Cal.App.5th at p. 681, citing People v. Elmore (2014) 59 Cal.4th 121, 133.) Unlike gross negligence, implied malice "depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (People v. Watson (1981) 30 Cal.3d 290, 296-297 (Watson); Batchelor, supra, 229 Cal.App.4th at pp. 1112-1113.) In other words, "[i]t is not enough that a reasonable person would have been aware of the risk." (People v. Moore (2010) 187 Cal.App.4th 937, 941 (Moore).) As one court put it, "the state of mind of a person who acts with conscious disregard for life [i.e., implied malice] is, 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' The state of mind of the person who acts with conscious indifferences to the consequences [i.e., gross negligence] is simply, 'I don't care what happens.' " (People v. Olivas (1985) 172 Cal.App.3d 984, 987-988 (Olivas).)
Although implied malice requires actual awareness of the risk created, it does not require proof "by an admission or other direct evidence of the defendant's mental state." (People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.) "[L]ike all other elements of a crime, implied malice may be proven by circumstantial evidence." (Ibid.)
B. Analysis
Sanchez concedes sufficient evidence supported a finding of gross vehicular manslaughter while intoxicated, but argues the murder conviction "should be reversed due to insufficient evidence she acted with the requisite conscious disregard for life." We disagree.
In Watson, the Supreme Court considered whether there was probable cause to allow a murder charge to proceed to trial in a vehicular homicide case based on the preliminary hearing evidence. The defendant had driven his car to a bar alone, knowing he would have to drive it later. (Watson, supra, 30 Cal.3d at p. 300.) Leaving the bar with a blood alcohol level of .23 percent, he ran a red light and narrowly avoided a collision by skidding to a halt. (Id. at pp. 293-294.) He sped off at high speeds (84 m.p.h.) and struck a car at the next intersection, killing two people. (Id. at p. 301.) These facts were considered sufficient for a murder charge. (Ibid.)
Post Watson, "appellate courts have upheld numerous murder convictions in cases where defendants have committed homicides while driving under the influence of alcohol." (Wolfe, supra, 20 Cal.App.5th at p. 682 [collecting cases].) These cases have generally relied on some or all of the factors present in Watson, " '(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.' " (Id. at pp. 682-683.) However, "nowhere does the opinion in Watson state that all of the factors present in that case are necessary" to find implied malice; Watson "deliberately declin[ed] to prescribe a formula . . . , instead requiring a case-by-case approach." (Olivas, supra, 172 Cal.App.3d at pp. 988-989.)
With these guideposts in mind, we conclude there is sufficient evidence to support a reasonable finding of implied malice here. As we explain, the jury could reasonably conclude that Sanchez was subjectively aware of the danger to human life based on her social media post and ride to and from the nightclub, numerous warnings that she was too drunk to drive and offers to drive her home or call a taxi or rideshare, and pre- and postcollision admissions that she was drunk. It could also reasonably find she consciously disregarded that known danger based on her high level of intoxication, postcollision conduct, postcollision statements to law enforcement, and the manner in which she drove.
Sanchez expressed her intent to consume alcohol on social media prior to leaving her home. As a result, she secured a ride to and from the nightclub from her friend Maritza. She then went on to consume multiple alcoholic beverages that evening and early morning. Later that morning, Sanchez told her husband she was drunk in response to his request that she return home to take care of their children. As she prepared to leave, two of her friends offered to drive or call her a taxi or rideshare. They warned her at least three or four times not to drive because she was drunk and had not slept. One friend even followed her out of the room and tried to steer her back inside to prevent her from driving. Sanchez became "aggressive," ignored their pleas, and drove home alone from the motel. Sanchez later told law enforcement she was drunk and the collision was an accident. She also acknowledged she drove without a license and told the officer, "That's why I would never drive. I would never drive the car when I went out. But since I had been drinking, I just took it."
The fact that a defendant chooses to drive, despite being warned by others that she is too intoxicated to drive, supports a reasonable inference that the defendant was subjectively aware of the risk posed by driving while intoxicated. (See, e.g., People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092 (Johnigan) [affirming murder conviction where the defendant refused offers for a safe ride home, was warned at a bar that she was too drunk to drive and could harm people, and had, on prior occasions, been warned that she was too drunk to drive and might injure someone]; People v. Ferguson (2011) 194 Cal.App.4th 1070, 1077-1079 (Ferguson) [affirming implied malice murder conviction where defendant, a Marine, drove while intoxicated despite repeated warnings from friends that he was too intoxicated to drive, and despite routine warnings from the Marine Corps at liberty briefings regarding the dangers of drinking and driving].)
Viewing the record as a whole, Sanchez's facts are similar to those in Johnigan and Ferguson. Sanchez had at least 30 or 40 minutes to consider the consequences of driving before she got in her car and left the motel that fateful morning. She admitted she was drunk before leaving the motel, refused offers for a safe ride home, and was warned several times she was too drunk to drive. Moreover, she told officers she had secured a ride to and from the nightclub and would never drive her car when she went out because she did not have a license. She also said she struck the victim by accident because she was drunk. On this record, a jury could reasonably infer Sanchez was subjectively aware of the risk to human life posed by driving while intoxicated.
The evidence also supports a finding that Sanchez deliberately drove in conscious disregard of the known risk to human life. (Wolfe, supra, 20 Cal.App.5th at p. 683.) Sanchez's blood-alcohol level is not in dispute. A chemical analysis of her blood reported a .17 percent blood-alcohol level. Her breath samples yielded results of .18 and .19 percent. Further, her blood-alcohol concentration was between .20 and .29 percent and field sobriety tests indicated she was impaired by and under the influence of alcohol at the time of the collision.
Contrary to Sanchez's assertion, her lack of any prior criminal history is not dispositive. "[T]here is no requirement of a 'predicate act,' i.e., a prior DUI or an alcohol-related accident necessary to establish implied malice." (Johnigan, supra, 196 Cal.App.4th at p. 1090.)
Sanchez's argument that her lack of education classes related to driving under the influence precludes a finding of conscious disregard for human life is equally unpersuasive. To the extent Sanchez suggests she did not know the risks related to driving under the influence, that "stands in contrast to the evidence that immediately after the collision, defendant knew [she] had just run a red light." (People v. Hicks (2017) 4 Cal.5th 203, 217-218.) In Hicks the supreme court stated: "That fact that [defendant] was aware, immediately after the collision, that he had run a red light is particularly noteworthy; it strongly supports the conclusion that defendant acted knowingly and with conscious disregard of any danger." (Id. at p. 217.) Once help arrived, the defendant in Hicks actively resisted officers' instructions and medical treatment, "again proving his ability to make decisions (albeit poor ones) and to act with intentionality." (Ibid.)
"The question of implied malice is to be decided in light of all the circumstances." (Moore, supra, 187 Cal.App.4th at p. 942.) Here, implied malice is supported by Sanchez's postcollision conduct. Sanchez called her husband immediately after the collision and told him she had hit someone, the person was in her car, and she thought the person was dead. When her husband urged her to stay put and call the police, she refused because she was "really scared." Sanchez then continued driving at least three-quarters of a mile with a dead person in her car. Several bystanders tried to calm her down and get her to sit on the curb when she stepped out of her car. Instead, she walked home and changed clothes before the police arrived. That Sanchez did not know whether the person was dead when she fled the scene is further evidence of her conscious disregard for human life.
Implied malice is further supported by Sanchez's postcollision statements to law enforcement. Sanchez initially told officers she did not know what they were talking about when they questioned her at her home. She quickly changed her story, claiming she was drunk and the collision was an accident. She also told them she "panicked" when she woke up to find a person in her car. On this record, a jury could also reasonably conclude that Sanchez deliberately drove in conscious disregard of the known risk to human life. (Wolfe, supra, 20 Cal.App.5th at p. 683.)
We reject Sanchez's claim that, except for the underlying act itself, she did not otherwise engage in highly dangerous driving behavior. A jury could reasonably infer that several collisions were narrowly avoided by others on the road that morning. (Moore, supra, 187 Cal.App.4th at pp. 941-942 [rejecting defendant's claim he had no "near-miss" prior warnings].) It is uncontroverted that Sanchez struck the victim by going over the curb and travelling along the sidewalk and dirt area for about one hundred feet. Further, the investigating officer testified that Sanchez was either accelerating excessively, braking too hard, or going too fast to safely maneuver a turn when she struck the victim with her car.
Nor are we persuaded by Sanchez's arguments that 6:15 a.m. is a time when few pedestrians are expected to be on the sidewalk or cars are expected to be on the road, she was not driving a long distance, and she either fell asleep or briefly lost control of her car due to her intoxication. The collision took place on a Monday morning, a weekday. Sanchez knew her husband left the house at 5:00 a.m. to go to work. At trial, one witness testified he was driving home after working a graveyard shift when Sanchez drove past him that morning. Another witness testified he was standing outside and preparing to go to work when Sanchez drove around the corner and stopped her car in front of his house. Sanchez's argument she only drove a short distance is unavailing given the collision occurred more than a mile away from her home. Moreover, voluntary intoxication is not a defense to implied malice murder. (Wolfe, supra, 20 Cal.App.5th at pp. 690-691.)
In sum, sufficient evidence supports Sanchez's murder conviction. A reasonable jury could find Sanchez drove impaired and in a reckless manner knowing she was endangering human life and consciously disregarding that risk. (Olivas, supra, 172 Cal.App.3d at p. 988.) Sanchez's claim that "second degree murder convictions based on fatalities caused by drinking and driving are not supposed to be routine" does not convince us otherwise. As the Supreme Court recognized in Watson, "a defendant may be charged with second degree murder upon facts which also would support a charge of vehicular manslaughter." (Watson, supra, 30 Cal.3d at p. 299.) That the evidence might also support conviction of a different uncharged offense does not affect our analysis on sufficiency of the evidence review.
II. Instructional Error
Sanchez contends the murder conviction should be reversed because the court erred in failing to properly respond to the jury's second of two questions about implied malice.
A. Additional Background
The court instructed the jury on implied malice in relevant part as follows:
"The [d]efendant acted with implied malice if:"
"1. She intentionally committed an act;
"2. The natural and probable consequences of the act were dangerous to human life;
"3. At the time she acted, she knew her act was dangerous to human life; and
"4. She 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."
During the second day of deliberations, the foreperson sent the following note to the court:
"Under 520, Implied Malice (3) 'At the time she acted, she knew her act was dangerous to human life.' [¶] Does 'at the time' include any previous knowledge in her 29 years; or only at that moment? Please clarify the moment."
During a subsequent discussion regarding this question, defense counsel requested the court simply tell the jury to follow the instructions and the evidence. The court noted knowledge is generally a cumulative endeavor, defense counsel argued the jury was required to find she had the requisite knowledge at the moment of the accident, and the prosecutor argued the jury was actually asking whether obtaining knowledge of the dangers of drinking and driving after the fact was sufficient. After agreement from the parties, the court responded to the note as follows:
"Consider all the knowledge she knew at the time of the incident."
Later that same day, the foreperson submitted a second note:
"Please clarify [¶] Do we consider her 'knowledge' at the time of the accident [¶] or [¶] All of her experiences up to the collision."
Defense counsel requested the court answer the jury's question by answering "yes," they have to consider "her knowledge at the time of the collision." The prosecutor suggested the court respond by explaining that her knowledge is comprised of all her experiences up to the collision, agreed the jury had to consider her knowledge at the time of the collision, and again stated he thought the jury was asking whether learning about or obtaining knowledge of the dangers of drinking and driving after the collision was sufficient. Over the prosecutor's objection, but without objection by defense counsel, the court decided to answer the jury's second question by referring them to CALCRIM No. 200. The court responded to the note as follows:
"Please refer to Jury Instruction number 200, Paragraph six (6), last sentence."
The last sentence of paragraph six in CALCRIM No. 200 states: "Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
Thereafter, the jury returned guilty verdicts on counts one through three. The jury also found true the allegations as to count two that Sanchez fled the scene of the crime and personally inflicted great bodily injury upon the victim.
B. Legal Principles
Section 1138 provides that "[a]fter the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
" 'The court has a primary duty to help the jury understand the legal principles it is asked to apply.' [Citation.] During jury deliberations 'when the jury "desire[s] to be informed on any point of law arising in the case . . . the information required must be given." ' [Citations.] 'However, "[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." ' [Citation.] Although the trial court need not always elaborate on the standard instructions, the trial court nevertheless has 'a " 'mandatory' duty to clear up any instructional confusion expressed by the jury." ' " (People v. Fleming (2018) 27 Cal.App.5th 754, 766 (Fleming).)
" 'An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.' [Citation.] However, '[w]e review de novo the legal accuracy of any supplemental instructions provided.' [Citations.]" (Fleming, supra, 27 Cal.App.5th at p. 765.)
C. Forfeiture
The People contend Sanchez forfeited her appellate challenge to the court's response to the jury's second question. We agree.
A defendant forfeits an appellate challenge to the manner in which the trial court responds to a jury question if the defendant fails to request a different response or agrees with the response proposed by the court. (People v. Davis (2009) 46 Cal.4th 539, 616-617 [defendant forfeited his appellate challenge to trial court's response to the jury's inquiry regarding the meaning of the term " 'merely incidental' " in the jury instructions when defense counsel agreed to a response using the definition from Black's Law Dictionary and did not request any additional language]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [defendant waived his appellate challenge to trial court's response to a jury question because defense counsel suggested and consented to the responses given by the court]; People v. Cooper (1991) 53 Cal.3d 771, 847 [when "defense counsel did not suggest the elaboration he now urges" concerning the trial court's response to a jury question, defendant "may not raise the issue on appeal"].)
Sanchez's counsel did not object to the court's proposed response to the jury's second question; to the contrary, he affirmatively agreed. As a result, Sanchez's claim of error on appeal is forfeited. (People v. Salazar (2016) 63 Cal.4th 214, 248 [counsel's affirmative agreement with the court's reply to a note from the jury forfeits a claim of error].) Further, Sanchez concedes that the court's response to the jury's second question was "technically a correct statement of the law." "When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 802.)
Even assuming this contention is not forfeited, it is without merit. As we explain, the court did not abuse its discretion when it responded to the jury's second question, Sanchez's substantial rights were not violated, and counsel was not ineffective for failing to object to the court's proposed response.
D. Analysis
Sanchez argues the court's response was improper because it did not clarify "the requisite knowledge element for implied malice" and simply repeated a standard instruction in response to the jury's expressed confusion. We disagree.
We note that the court does not have a duty to give amplifying or clarifying instructions for terms that are " 'commonly understood by those familiar with the English language.' [Citation.]" [Citation.]' [Citation.] Only where a term used in an instruction has a specific or technical meaning peculiar to the law is a further explanatory instruction necessary." (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319.) The jury here asked the court two questions about implied malice—the second question was essentially a repeat of the first. Both questions asked the court to "clarify" whether the phrase "at the time" referred to Sanchez's knowledge at the exact moment of the collision, or accumulated knowledge that she had acquired over her lifetime. The jury's questions thus inferred that it may have been confused by the phrase "at the time." "[T]he trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.' " (People v. Lua (2017) 10 Cal.App.5th 1004, 1017.) Having previously instructed the jury to "[c]onsider all the knowledge she knew at the time of the incident," the court appropriately referred it to paragraph six of CALCRIM No. 200 and instructed it to apply "ordinary, everyday meanings" to the phrase "at the time," which was not specifically defined in the instructions.
Sanchez next asserts the court should have answered the jury's second question with "yes," "you consider her 'knowledge' at the time of the accident," or, in the alternative, "[y]ou may consider all of her experiences up to the time of the collision . . . [h]owever, to return a guilty verdict in Count One, you must find she possessed the requisite knowledge at the time of the fatal act." We are not persuaded. The court's decision to instruct the jury to review CALCRIM No. 200 correctly focused the jury's attention on how to interpret words and phrases not specifically defined in the instructions. We presume jurors are intelligent persons capable of understanding the jury instructions and applying them to the evidence, and followed the court's instruction to reread the relevant sentence in CALCRIM No. 200. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Even assuming the court erred, the error was harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 503-505, citing Chapman v. California (1967) 386 U.S. 18, 24.) The jury found Sanchez guilty of implied malice second degree murder, rejecting her defense that she did not act in conscious disregard for human life. As stated, the jury's second question was essentially a repeat of the first; Sanchez does not contend that the court's response to the first jury question was error. Thus, it is not reasonably probable that Sanchez would have received a more favorable outcome had the court given it the response proposed by defense counsel. (People v. Breverman (1998) 19 Cal.4th 142, 178.)
E. Ineffective Assistance of Counsel
Sanchez contends defense counsel was ineffective for failing to object to the court's proposed response to the jury's second question. Sanchez offers no record support for this contention.
Sanchez bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing norms, and (2) counsel's deficiencies resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)
The record does not support a finding that defense counsel was deficient. During the parties' conference about the jury's second question, counsel suggested a response, countered the prosecutor's proposed response, and engaged in a full discussion about the court's proposed response. Counsel then agreed with the court's suggestion that they refer the jury to CALCRIM No. 200. We can conceive of a tactical reason for counsel not to object to the court's proposed response given that CALCRIM No. 200 was a correct statement of the law and counsel had agreed to the court's first response to the jury's similar inquiry about implied malice, and because the court stated it would consider augmenting its second response if the jury came back with another question.
Even assuming counsel's performance was deficient, Sanchez does not meet her burden to show prejudice. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at pp. 693-694.) "Specifically, '[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.' " (Ledesma, supra, 43 Cal.3d at p. 218.) Given the totality of the evidence supporting a finding of implied malice (see section I, ante), Sanchez does not meet her burden to show by a preponderance of the evidence a reasonable probability of a different outcome had defense counsel objected. (Strickland, supra, 466 U.S. at p. 694 ["A reasonable probability is a probability sufficient to undermine confidence in the outcome."]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1007 [" ' "The proof . . . must be a demonstrable reality and not a speculative matter." ' "].) Defense counsel was not constitutionally ineffective for failing to object to the court's response to the jury's second question.
We conclude the court did not abuse its discretion when it responded to the jury's second question, Sanchez's constitutional rights were not violated, and counsel was not ineffective for failing to object.
III. Correction to the Abstract of Judgment
The People concede and we agree that the abstract of judgment should be amended to reflect the correct direct victim restitution amount of $2,123.50 under section 1202.4, subdivision (f), and not $212,350.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the correct direct victim restitution amount of $2,123.50, as set forth in section III of this opinion, and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
GUERRERO, J.