NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1475343)
Defendant Juan Carlos Garcia Ayala was convicted after jury trial of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), misdemeanor using a controlled substance (former Health & Saf. Code, § 11550, subd. (a)), misdemeanor hit and run (Veh. Code, § 20002, subd. (a)), and driving under the influence of alcohol and/or drugs (DUI) causing injury (former Veh. Code, § 23153, subd. (a)). The jury found true the allegations that defendant personally used a dangerous and deadly weapon, a truck, regarding both assault counts (§§ 667, 1192.7), and found true the allegation that defendant personally inflicted great bodily injury regarding one of the assault counts (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). Regarding the DUI count, the jury found true the allegations that defendant personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)) and that defendant proximately caused injury to an additional person (Veh. Code, § 23558). Defendant pleaded no contest to misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The trial court sentenced defendant to eight years in prison.
Defendant testified at trial that his full name is Juan Garcia. He previously indicated to the court that his true full name is Juan Carlos Garcia Ayala.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that his DUI conviction must be reversed because there was insufficient evidence that he was under the influence. Defendant also contends that the trial court committed prejudicial evidentiary errors by admitting his testimony regarding being under the influence, admitting evidence of an uncharged hit and run, admitting evidence of his misdemeanor convictions for infliction of corporal injury and hit and run, and admitting lay opinion. Lastly, defendant contends that there were prejudicial instructional errors because the trial court gave the jury an incorrect instruction on driving under the influence and failed to instruct the jury on a rebuttable presumption concerning blood-alcohol level.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by second amended information with two counts of assault with a deadly weapon, a truck (§ 245, subd. (a)(1); counts 1 & 2), misdemeanor using or being under the influence of a controlled substance, cocaine or methamphetamine (former Health & Saf. Code, § 11550, subd. (a); count 3), misdemeanor hit and run driving causing property damage (Veh. Code, § 20002, subd. (a); count 4), misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 5), and driving under the influence of alcohol and drugs, causing injury (former Veh. Code, § 23153, subd. (a); count 6). The information further alleged as to counts 1 and 2 that defendant personally used a dangerous and deadly weapon, a truck, in the commission of the offenses (§§ 667, 1192.7). The information also alleged as to counts 1, 2, and 6 that he personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). As to count 6, the information further alleged that defendant caused injury to an additional person (Veh. Code, § 23558). Prior to trial in 2015, defendant pleaded no contest to misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 5).
A. The prosecution's case
1. The incident
Gilberto Garcia Ramirez testified that he went to a bar, located in a shopping center, until the bar closed in the e0arly morning hour of August 31, 2013. Defendant was at the bar and had previously socialized with Ramirez on another occasion. As everyone was exiting the bar, defendant threatened Ramirez. Ramirez characterized defendant's demeanor as aggressive and drunk. As defendant walked toward his own truck, he said that no one was going to make fun of him and that he was going to kill someone. Ramirez did not know who defendant was referring to. Defendant grabbed a pipe from his truck. Ramirez believed defendant wanted to hit Ramirez and his friends, but defendant stayed near his own truck and did not hit anyone with the pipe. Defendant eventually put the pipe back in his truck.
Defendant drove in the parking lot to the front of the bar where people were leaving. He argued with a group of men. He was insulting some of them and they were visibly upset. At some point, Ramirez saw a man come from behind defendant's truck. The man had something in his hand, which may have been a belt.
Defendant eventually resumed driving in the parking lot. Ramirez testified that when two people were in front of defendant's truck, he sped up and hit them and then drove off.
The evidence established that when defendant initially drove out of his parking spot, he did not exit the parking lot by directly traveling to one of the two nearest exits. Instead, he drove his vehicle around one of the parking rows and struck the two victims and a parked BMW, before exiting the parking lot by one of the two exits.
Raymundo Becerra Garrido and his 17-year-old son were the two people that defendant hit with his truck. Neither Garrido nor his son knew defendant. The son testified that he was waiting outside the bar while his father was inside the bar until the bar closed. The son admitted at trial that his father was drunk. The son testified that, after the bar closed, he saw defendant in the parking lot arguing and trying to fight with two or three other men. Defendant took out a metal pipe and hit the ground with it, trying to scare the men. It appeared that the men did not want to fight, so defendant put the pipe back in his truck. Neither Garrido nor his son saw anyone hit defendant. The son believed that defendant was the only one who was trying to fight, and that the other men were trying to stop him. According to the son, defendant "turned around the parking lot" in his truck where the son and father were standing.
Garrido testified that while defendant had the metal stick, he was aggressive towards the people around him. Garrido testified that as he and his son walked, defendant yelled obscenities at them and wanted to fight with them. Garrido told defendant that he was drunk and to go rest at home. In response, defendant cussed at Garrido. Garrido and his son started walking.
Garrido's son testified that defendant "floored it," causing the truck's tires to screech and leaving marks on the ground as defendant drove towards him and his father. Defendant's truck hit both of them. Garrido's son ended up on top of the truck and then fell to the ground, while Garrido was run over.
Garrido's son was not seriously injured. Garrido, however, was in the hospital for three weeks, followed by months of rehabilitation.
After the incident, around 1:37 a.m., witnesses called 911. One caller reported that a man who was drunk ran over someone in the parking lot and hit a BMW. The caller stated that the driver was in a Chevy pickup and that he did not stop. Another caller referred to the driver as a "crazy guy."
San Jose police began searching the neighborhood for the vehicle. About 1:54 a.m., the police located defendant's vehicle parked on a street. The front left side of the vehicle was damaged, and there was substantial damage to the windshield, which was shattered.
San Jose Police Officer Jorge Santiago made contact with defendant about 0.4 miles from the location of defendant's vehicle and about a half-mile from the shopping center. At the time, the officer was assigned to patrol and was conducting surveillance for another matter. By the time of trial in 2015, the officer was a detective in the homicide unit. Officer Santiago received an initial description of the person who was involved in the incident and the vehicle. The officer testified that he was able to locate defendant after receiving additional information through dispatch after defendant himself had called 911.
Defendant was six feet tall and 165 pounds. Officer Santiago did not observe any injuries on defendant. However, defendant's speech was rapid, he kept moving around, and his hands were "moving all over the place." He had red, glossy eyes and an unsteady gait, and he emitted the odor of alcohol from his person. He also appeared nervous. Officer Santiago believed it "was going to be for sure" a DUI case. Based on what he "knew up to that point and the way [defendant] was acting," the officer believed "it was likely drugs, but [he] could smell alcohol on [defendant's] person."
For officer safety, Officer Santiago did not conduct a field sobriety test, which helps determine if a person is under the influence of alcohol. He believed defendant was "blasted." The officer testified that "[b]lasted is a reaction to a drug, alcohol, or combination of alcohol and drug where the person's body starts displaying aggressiveness, rapid motion, rapid speech, and can be combative at times." Officer Santiago testified that it is "important" to take the person "into custody right away because at any given moment that person can react in a violent way." According to the officer, the person's "heart's going to be beating so hard that he's not going to realize what he's doing, and he can become so aggressive at a fast rate that whoever the officer's there with them can possibly get hurt." Officer Santiago explained that his testimony was based on his experience and other calls he had gone to where "other officers have been hurt because of coming in contact with . . . someone who's blasted." Officer Santiago placed defendant in handcuffs because "if he was blasted, [the officer] did not want him to become combative."
At trial, Officer Santiago distinguished being drunk, "as in alcohol," and being blasted, which "would be anyone under the influence of drugs." He explained that "[s]ometimes it's associated to someone who's been under the influence of P.C.P., or it can be someone who has an adverse reaction to either coke, meth, or any type of drug because their body's not used to having such drug or high levels of that drug in combination with alcohol."
At trial, Officer Santiago acknowledged that defendant was cooperative for the most part. The officer testified, however, that "that doesn't mean that he was not blasted. . . . [H]e could just switch the aggressiveness in a manner of one second."
Officer Santiago acknowledged at trial that a preliminary screening test is used to validate an officer's suspicion that a person has alcohol in his or her system so that the officer may legally arrest the person at that point. He admitted that he had a preliminary alcohol screening test with him when he made contact with defendant, and that he believed defendant was under the influence. The officer explained, however, that defendant was placed in handcuffs and under arrest because the police "had sufficient evidence to believe that he committed a felony hit and run."
Defendant was eventually transported by another officer to the police department's processing center in a "caged vehicle" because the police "believed he was blasted." Officer Santiago explained at trial that he had been driving an unmarked vehicle and "we didn't want [defendant] in an unmarked vehicle which is not caged."
The police "assisted [defendant] in" the processing center because "he wasn't walking like any normal person would walk." At the processing center, a blood sample and two breath samples were taken from defendant. He was cooperative during this time.
Defendant's blood sample was taken at 3:03 a.m. His blood contained 0.04 grams percent of alcohol. Preliminary alcohol screening tests were administered at 3:18 a.m. and 3:26 a.m. The results of the tests indicated a blood-alcohol concentration of 0.032 and 0.021. A blood test is considered more reliable than the screening test. Methamphetamine, a stimulant, was also in defendant's blood at a level of 0.053 micrograms per milliliter. Defendant also had 0.024 micrograms per milliliter of cocaine, a stimulant, in his blood.
Mark Burry, a forensic scientist with the Santa Clara County Crime Lab, testified as an expert in the analysis and effects of alcohol, cocaine, and methamphetamine. He estimated that an individual the same size as defendant, with the same blood-alcohol concentration of 0.04 grams percent at the time defendant's blood was drawn at 3:03 a.m., would have had a blood-alcohol concentration of approximately 0.06 to 0.07 grams percent at 1:37 a.m. Burry acknowledged that the 0.04 result from the blood draw could have been the peak, depending on the person's alcohol absorption rate, which is affected by, among other things, whether the person has food in their stomach.
Burry testified that at 0.02 and 0.03 blood-alcohol concentration, the beginning effects of cognitive impairment occur and behavior starts to be impacted by alcohol. Some of the effects may include decreased vigilance, decreased inhibition, and increased risk-taking behavior. By 0.04, a majority of the cognitive effects are occurring and impairment in the ability to do divided-attention tasks starts to occur. Decision making and judgment is starting to become impaired.
Burry explained that driving is considered a divided-attention task because it requires a person to be able to simultaneously do multiple tasks at the same time, such as comprehend what is in the driver's peripheral vision, listen for sirens, apply gentle pressure on the gas pedal, and make small adjustments on the steering wheel. At a 0.05 and up, instead of simultaneously doing these tasks, the person is doing them sequentially - checking the mirror, then adjusting the steering, and then applying a little brake. Further, inhibition is decreasing and the person feels more capable to take on more tasks, such as adjusting the radio and using the cell phone. Capability, however, is decreasing.
In determining whether someone was impaired at a level below 0.08, Burry testified that he would look at driving pattern, the person's demeanor, whether the person smells of alcohol, has red watery eyes, has a staggered gait, and the results of field sobriety tests.
Burry testified that the level of methamphetamine in defendant's blood was a "low amount." Methamphetamine's half-life, meaning the time it takes for a quantity of the drug in a human body to go from its original value to half its value, is six to 15 hours. Low concentrations of methamphetamine improves performance and ability if the person is already impaired by something. For example, it would improve a person's ability to perform a task over the person's sleep-deprived state.
The amount of cocaine in defendant's blood, 0.024 micrograms, was below the crime lab's cutoff value of 0.025, so the lab reported defendant as negative for cocaine. Defendant tested positive for benzoylecgonine (B.E.), which is cocaine's metabolite, at 0.235 micrograms per milliliter. This compound is only metabolized from cocaine, so it is only found in a person's blood if the person has used cocaine. The compound itself is not psychoactive, meaning it does not cause a person to have a high.
Cocaine's duration of effect is an hour or less, and it metabolizes quickly. Cocaine's half-life is about one to two hours, and the detection window for cocaine is around five to seven hours. A person who has 0.025 micrograms per milliliter of cocaine in their blood at 3:03 would have had between 0.1 and 0.05 micrograms per milliliter of cocaine in their blood between 1:00 and 2:00. The half-life of cocaine's metabolite B.E. is about six to eight hours, and "[s]o the time for detection for B.E. is closer to . . . 48 hours."
Burry testified that it can be "simple" to list the reactions to a single drug. He stated, however, that "[w]hen you start combining different drugs, it's an internal battle with what the chemicals are doing with that individual's brain." Burry testified that a synergistic effect is when two drugs create an effect that is stronger than the individual drugs alone would have created. He explained that a synergistic effect is "kind of like one plus one equals four instead of one plus one equals two." For example, combining alcohol and cocaine "would . . . correlate to a higher expression of the traits for either cocaine or alcohol." "A little bit of cocaine with a lot of alcohol creates a better cocaine effect, a better euphoria, a better high from the cocaine." Burry testified that a metabolite is formed when cocaine and alcohol are used, and that metabolite itself has psychotropic effects, including causing euphoria. Burry had heard of people using alcohol to enhance the effects of cocaine and indicated that there was scientific literature on such combined use.
Burry was not aware of any study regarding the combined effect of using alcohol, cocaine, and methamphetamine. Burry stated that it was "not possible to predict" the symptoms of someone under the influence of three drugs, such as alcohol, cocaine, and methamphetamine, and that the symptoms depended on the person. Burry acknowledged that it was possible that a person who had taken alcohol and stimulants, such as cocaine and methamphetamine, would be more alert than a person who only consumed alcohol. However, although the drugs could reverse drowsiness from the alcohol, if the alcohol was at a level enough to impair driving, the drugs would not reverse poor judgment, increased disinhibition, or decreased ability to perform divided-attention tasks.
After defendant provided blood and breath samples at the processing center, he was transported to the main jail and booked. If a suspect is injured, the police document and photograph the injuries and provide medical assistance if needed. An injured suspect must be "medically cleared" before booking. If the police try to book someone into jail with an injury, the person will get "rejected" by the initial intake nurse, and the police "would have to take the person to the hospital." The person would then have to be "cleared" by the hospital before the person is booked into the main jail. One of the questions that the nurse asks is whether the suspect sustained a head injury within the last two hours. If the answer is yes, clearance from the hospital is normally requested. Defendant was not rejected by the nurse and was booked at the main jail.
2. Defendant's prior hit and run
A San Jose police officer testified that he investigated a hit and run collision that occurred in November 2005. The officer contacted defendant less than two weeks later after defendant was identified as a suspect. Upon request, defendant went to the police department to make a statement. He stated that he had borrowed a pickup truck and trailer, and that the trailer had become detached as he was driving. Defendant admitted seeing the trailer hit another vehicle. He claimed that he was going to pull over, but he was worried about his friend's truck getting impounded. He left the scene without leaving any information.
B. The Defense Case
Dr. Elaine Chiu testified as an expert in emergency medicine, traumatic injury treatment, and intoxicated trauma patients. Dr. Chiu testified that the medical records for Garrido, one of the victims who was hit, reflected that his admitting diagnoses on the date of the incident included "alcohol abuse continuous." The records also reflected that Garrido's blood-alcohol level was 0.225. Garrido's son's medical records from the date of incident reflected that the son's blood-alcohol level was 0.082.
A woman called 911 at 2:12 a.m. regarding a man, who was later determined to be defendant, outside her residence. At trial, the woman testified that the man had been frantically beating on her door in the early morning hours. She called out from a window and asked what he wanted. The man responded in Spanish, which she did not understand. She watched him from inside her house for about 10 minutes. The man appeared frightened. He was pacing around and "ducking and dodging and hiding" every time car lights came down the street. The woman saw the man on his cell phone. He spoke in Spanish and English. The woman told the man that if he did not leave, she was going to call the police. The woman reported to 911 that the man was "acting weird." The police arrived a short time later. At trial, the woman testified that the man appeared to cooperate with the police and that he did not act belligerent or drunk. She saw the man point to the back of his head, and she saw the police shine a flashlight on it.
Defendant testified in his own defense. He was a member of a masons' union, and he also worked independently doing cementing and other work. He used a truck for work, and he had a disassembled metal rack in the back of the truck. Defendant and Ramirez, one of the witnesses who testified at trial, had a mutual acquaintance who defendant had previously hired to do work. At some point, defendant decided not to give the acquaintance any more work.
Prior to the incident, defendant had dinner at the shopping center by himself before going to the bar after midnight. At the bar, defendant saw Ramirez and their mutual acquaintance. Ramirez and the mutual acquaintance were with a group of people who were shouting a lot, saying "salute," and hugging each other. Ramirez and the whole group appeared intoxicated. Defendant was about 10 feet away. He testified that Ramirez and the mutual acquaintance were clenching their fists at him and pointing outside. Defendant testified that he ignored the group.
Defendant testified that he did not have any alcohol before he went to the bar. At the bar, he ordered a "Michelada," which consists of beer, Clamato juice, lime, salt, and hot peppers. After he finished the drink, defendant went to the bathroom and encountered a man who was "jabbing at everyone" with a key that had white powder on it. The man told defendant to "[g]o ahead" and put it up to defendant's nose. Defendant inhaled a "tiny" amount, equal to about a half a grain of rice, even though he did not know what the powder was. Defendant testified that he did not know the man but he "thought [the man] could be a friend." After he inhaled the substance it "opened up [his] eyes really big." Defendant admitted at trial that he had used cocaine before but that he could not remember how many times.
Upon returning from the bathroom defendant ordered the same drink again. He saw Garrido near Ramirez and/or the acquaintance. They appeared to know each other. The men in the group kept looking at defendant, making eye contact, and pointing outside. Defendant continued ignoring them. He thought they could hurt him.
Defendant testified that he waited for the group to leave after the bar closed. He did not want to go outside while the group was still present. He thought they were going to hit him because he did not give the mutual acquaintance any more work, and he thought they could try to rob him because the worker knew defendant sometimes had a large amount of money on a weekend. Eventually defendant was told by the bar's cleaning staff to leave.
Defendant testified that he was quickly surrounded as he exited the bar. The men told defendant that "you don't mess around with them." Defendant was frightened. He told them that they should let him know if they needed money and not to hit him. One of the men got upset and tried to pull something out, which defendant thought was a gun although he did not actually see one. Defendant ran to his truck and grabbed a metal piece of the truck rack. He testified that he did not swing it at anyone, and that he thought they would back off when they saw him with the piece of metal.
The group did not back off and defendant saw one or more persons holding big metal belt buckles. Defendant threw the metal piece back into his truck and got in. The group started to beat on the windshield. One of the windows shattered. When defendant turned on the engine, he started getting hit through the window and being pulled out. Defendant testified that his face was scratched as a result.
Defendant testified that he put the truck in reverse, hit the brake, and hit the gas hard, so that the truck started backing up and the tires screeched. Defendant made the tires screech so the group would take off. He testified that they were trying to pull him out of the window, and that he heard them kicking the other side of the truck. Someone said, "Kill him already. Kill the son of a bitch," and, "Kill this mother fucker." Defendant drove the truck forward and they let him go.
Defendant admitted at trial that his truck hit a car and then "hit something kind of soft," which "could have been a person." He "felt" that he had hit only one person. At trial he testified that he did not see Garrido in the group that followed him to his truck, and he did not see Garrido's son that night. He thought the blows to his truck were from bullets and he thought he was going to get shot, so he did not stop. He exited the parking lot in his truck.
Defendant testified that he heard cars revving and tires screeching when he left the parking lot so he thought he was being followed. He eventually stopped his truck because he was far enough away to call the police and because it was difficult to see through the windshield. He tried to turn on his phone but music started playing loudly on a program. When the music plays, the phone locks and he cannot dial the phone. He was agitated and could not unlock it.
Defendant started knocking on doors to get an address to give to the police. He believed he was still being followed. Defendant testified that a woman at one house asked what he wanted, and that he explained he had been hit, was being followed, and that he needed her address. He testified that he also called the police and was talking to them on his phone. Defendant testified that he called 911 because he was "really scared," he "needed help" from the police, and he did not "want to hide running away from the police." According to defendant, the woman told him her address and he gave it to the police.
Defendant testified that the police eventually arrived at the address. According to defendant, the police talked to him for a little while, and he showed them his injuries, which were not bleeding. Defendant testified that the police were "talking and playing around with [him]," and that they asked him "which fragrance [he] was wearing, and it smelled nice and what was the name" of it. He also testified that, although the police did not ask if he had been drinking, they told him to blow into a black device three times. They also told him to follow their finger without moving his head.
Defendant testified that when he later had his blood drawn, one hand was still handcuffed. He also had to blow into a device again.
Defendant admitted that in 2005, he was convicted of a hit and run. He testified that a trailer attached to his vehicle came loose and that he saw the trailer hit a vehicle. He admitted that he did not stop and that he went home. At trial defendant acknowledged that it was "dishonest behavior," but he testified that he was afraid his truck would get taken away and that he would not have it for work. Defendant admitted that he had a 2012 domestic violence conviction.
Defendant admitted at trial that he had used cocaine in the past, but he denied using methamphetamine. He believed the substance he inhaled prior to the incident was cocaine. He agreed it is not a good idea to drive while "under a combination" of methamphetamine, cocaine, and alcohol. Defendant testified that he was "really sorry" about driving that day and that he "made a mistake." Defendant was sorry because he "drove while [he was] under the influence." Defendant testified that he drove because "these men were after" him and he did not have any other choice.
Defendant called 911 at 2:08 a.m. A recording of the call was played for the jury. In the call, defendant stated that he had been drinking in a place and that some men had said things to him inside and outside. He ran to his truck and was surrounded. Defendant reported that they started fighting him, and that they hit his truck, broke his truck windows, and scratched his face. He tried to escape and he hit a car. He thought he had been followed.
The lab employee who obtained defendant's blood samples after the incident testified that when she withdraws blood, the person is usually handcuffed to a ring on the wall. She does not "pay much attention to the suspect," she does not assess a person for objective signs of intoxication, and she makes a note on a written form only if she has a problem withdrawing blood. She did not have any problem withdrawing defendant's blood.
C. The Prosecution's Rebuttal Case
Officer Santiago, who made contact with defendant after the incident, testified that he advised defendant of his Miranda rights before defendant gave a statement. Defendant told the officer that he never drinks and that he does not like to drink. However, defendant did not deny drinking that night. Defendant also told the officer that he has a bad reaction when he uses drugs, and that he ends up in the hospital when he uses cocaine. Defendant told the officer that he used cocaine that night, and that his friend had given him the cocaine. Defendant never mentioned that a random person in a bathroom had a key with cocaine on it and put it up to defendant's nose. According to Officer Santiago, defendant mentioned crystal, which is another word for methamphetamine, when defendant spoke about using drugs although defendant did not specify the actual use of it. Officer Santiago testified that he did not conduct a preliminary alcohol screening, which involves a person blowing into a device, before defendant was transported by the police.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Santiago testified that he asked defendant whether he saw the two people who were run over, and defendant responded affirmatively. When the officer asked defendant if he was sick or injured, defendant said, "[N]o." The officer also testified that defendant never mentioned being hit on the head, and the officer did not see any scratches on defendant's face. When shown defendant's booking photo from the date of the incident and asked whether he saw "those scratches" on defendant's face that night, Officer Santiago testified that he did not "recall those scratches on his face that night."
D. The Verdicts and Sentencing
In March 2015, the jury found defendant guilty of assault with a deadly weapon on Garrido (§ 245, subd. (a)(1); count 1), assault with a deadly weapon on Garrido's son (§ 245, subd. (a)(1); count 2), misdemeanor using a controlled substance (former Health & Saf. Code, § 11550, subd. (a); count 3), misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 4), and driving under the influence of alcohol and/or drugs and causing injury to Garrido (former Veh. Code, § 23153, subd. (a); count 6). As to the assault counts, the jury found true the allegations that defendant personally used a dangerous and deadly weapon, a truck (§§ 667, 1192.7). As to the assault count involving Garrido (count 1), the jury also found true the allegation that defendant personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). Regarding the count for driving under the influence of alcohol and/or drugs causing injury to Garrido (count 6), the jury found true the allegations that defendant personally inflicted great bodily injury to Garrido (§§ 12022.7, subd. (a), 1203, subd. (e)(3)) and that defendant proximately caused injury to Garrido's son (Veh. Code, § 23558). Regarding the assault count involving Garrido's son (count 2), the jury found not true the allegation that defendant personally inflicted great bodily injury.
On June 26, 2015, the trial court sentenced defendant to eight years in prison. The sentence consists of the upper term of four years on count 1 (assault with a deadly weapon; § 245, subd. (a)(1)), three years for the enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)), and a consecutive term of one year (one-third the midterm) for count 2 (assault with a deadly weapon; § 245, subd. (a)(1)). The court stayed the sentence on count 6 (driving under the influence of alcohol and/or drugs causing injury; former Veh. Code, § 23153, subd. (a)) pursuant to section 654. The court ordered concurrent six-month jail terms for the misdemeanor counts.
A. Sufficiency of the Evidence of Driving Under the Influence
Defendant contends that his conviction for driving under the influence of alcohol and/or drugs causing injury (former Veh. Code, § 23153, subd. (a)) must be reversed because there is insufficient evidence that he was under the influence. The Attorney General contends that substantial evidence supports the conviction.
1. The standard of review
"In considering a challenge to the sufficiency of the evidence . . . we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
2. Driving under the influence
At the time of the incident, former Vehicle Code section 23153, subdivision (a) made it unlawful for a person "while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." (Stats. 2012, ch. 753, § 4, italics added.) Under this subdivision, "it is not necessary to prove any specific degree of intoxication," but rather, the question is whether the defendant was " 'under the influence' " of alcohol and/or drugs. (People v. Markham (1957) 153 Cal.App.2d 260, 270-271 (Markham) [analyzing former Veh. Code, § 501]; see People v. Weems (1997) 54 Cal.App.4th 854, 860 [former Veh. Code, § 501 was the precursor to former Veh. Code, § 23153, subd. (a)]; McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 687.)
On the issue of being under the influence, the jury was instructed that "[a] person is under the influence if, as a result of drinking or consuming an alcoholic beverage and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances." (Italics added; CALCRIM No. 2100; accord, People v. Lopez (2012) 55 Cal.4th 569, 574, fn. 1; People v. Schoonover (1970) 5 Cal.App.3d 101, 105-107.) To be found under the influence, the "defendant's ability to drive must actually be impaired"; it is not sufficient for defendant to have consumed a substance that "may have the potential to affect driving." (People v. Enriquez (1996) 42 Cal.App.4th 661, 666.) Whether the defendant was under the influence of alcohol and/or drugs "is a question of fact to be determined by the . . . jury from all the proven circumstances of the case." (Markham, supra, 153 Cal.App.2d at p. 271.)
Substantial evidence supports the finding that defendant was driving while under the influence. Defendant admitted drinking alcohol and using what he thought was cocaine in the bar before the incident. In addition to alcohol and cocaine, the evidence reflected that defendant had methamphetamine in his system at the time of the incident.
Lab results reflected that defendant's blood-alcohol level was 0.04 grams percent approximately one and half hours after the incident. Even at that level, forensic scientist and expert Burry testified that (1) alcohol impairs cognitive abilities, resulting in decreased vigilance, increased disinhibition, increased risk-taking behavior; (2) decision making and judgment are impaired; and (3) the ability to do divided-attention tasks, such as driving, is impaired. Alcohol also enhances the effects of cocaine. Burry further testified that, although a person who has taken alcohol and stimulants, such as cocaine and methamphetamine, might be more alert than a person who has consumed only alcohol, if the alcohol is at a sufficient level to impair driving, the drugs would not reverse poor judgment, increased disinhibition, or decreased ability to perform divided-attention tasks.
Burry testified that in determining whether someone was impaired, he would look at driving pattern, the person's demeanor, whether the person smells of alcohol, has red and watery eyes, has a staggered gait, and the results of a field sobriety test. The witnesses who encountered defendant before, during, or shortly after the incident reported that defendant exhibited symptoms consistent with those described by Burry as reflecting impairment. For example, Ramirez, who saw defendant inside and outside the bar, characterized defendant's demeanor as aggressive and drunk. Ramirez heard defendant make verbal threats and saw him arguing and insulting people. Garrido, who was struck by defendant's truck, similarly testified that defendant was aggressive towards the people around him and wanted to fight. Garrido actually told defendant that he was drunk and to go home. After the incident, a 911 caller reported that defendant was drunk, and another 911 caller referred to him as a "crazy guy." The woman who called 911 upon defendant appearing at her residence about a half an hour after the incident reported that defendant was "acting weird."
Officer Santiago, who encountered defendant a short time after the woman's 911 call, observed that defendant's speech was rapid, he kept moving around, and his hands moved "all over the place." Defendant also had red and glossy eyes, an unsteady gait, and smelled of alcohol. The officer had to assist defendant at the processing center because he was not walking like a "normal person."
Based in part on how defendant was acting, Officer Santiago believed it was a DUI case, likely involving drugs, but he also smelled alcohol on defendant. The officer believed that defendant was "blasted," meaning reacting to a drug and/or alcohol. The officer testified that being blasted can be associated with someone who has an adverse reaction to cocaine, methamphetamine, or any type of drug because the person's body is not used to having the drug or high levels of the drug in combination with alcohol. Consistent with this testimony by the officer, defendant reported to the officer that he has a bad reaction when he uses drugs and that he ends up in the hospital when he uses cocaine.
There was also evidence that defendant drove recklessly and failed to maintain proper control of his vehicle in the parking lot. Several people were in the parking lot after the bar closed, yet defendant himself admitted that he stepped on the gas and caused his tires to screech. Defendant's vehicle left tire marks in the parking lot. Defendant struck two people, and he acknowledged to Officer Santiago that he saw the two people who were run over. Defendant also hit a parked car in the parking lot. "[Defendant's] driving conduct . . . is not that expected of a sober person of ordinary prudence." (People v. Gallardo (1994) 22 Cal.App.4th 489, 493 [determining that there was substantial evidence the defendant was under the influence, including evidence that he " 'burned rubber' " leaving a parking lot, ran two stop signs, and broadsided another car].)
Based on this evidence - including the existence of alcohol, cocaine, and methamphetamine in defendant's system; expert Burry's testimony concerning the nature and signs of impairment; the witnesses in the parking lot and 911 callers who characterized defendant's demeanor as drunk, aggressive, crazy, and weird; defendant's manner of driving in the parking lot, including stepping on the gas when people were nearby and hitting a parked car; and Officer Santiago's observations regarding defendant's physical appearance and conduct shortly after the incident including an unsteady gait - substantial evidence supports the finding that defendant was driving while under the influence (former Veh. Code, § 23153, subd. (a)).
As a reviewing court, we neither reweigh evidence nor reevaluate a witness's credibility. (Albillar, supra, 51 Cal.4th at p. 60.) It was within the jury's province to reject defendant's testimony that his driving was affected by fear and haste in trying to escape a group of alleged attackers, rather than due to him being impaired by alcohol and drugs. It was also within the jury's province to determine that the woman who called 911 after defendant appeared at her house, and who testified that defendant acted weird but not drunk, may have been limited in her ability to evaluate his appearance and demeanor because she was inside the house and he was outside. (See Evid. Code, § 780, subd. (c) [in determining witness credibility, a jury may consider any matter that proves or disproves the truthfulness of the witness's testimony, including the extent of the witness's capacity to perceive].) To the extent defendant relies on the testimony of the lab employee who stated that she did not have a problem obtaining blood samples from defendant after the incident, the lab employee testified that she does not "pay much attention to the suspect," she does not assess a person for signs of intoxication, and she only makes a written notation if she has a problem withdrawing blood.
We are not persuaded by defendant's reliance on People v. Davis (1969) 270 Cal.App.2d 197 (Davis) and People v. Torres (2009) 173 Cal.App.4th 977 (Torres) to support his contention that there is insufficient evidence to support his conviction for driving under the influence.
In Davis, the appellate court concluded that there was a lack of evidence that defendant's narcotic use had impaired his ability to drive. (Davis, supra, 270 Cal.App.2d at p. 200.) The court stated that "[t]here was no evidence that defendant's driving had been in any respect erratic or unusual," and "[t]here was neither expert opinion nor the observation of anyone that defendant lacked the alertness, judgment and coordination which are needed to operate a motor vehicle in a prudent and cautious manner." (Id. at pp. 199, 200.)
Similarly, in Torres, the appellate court concluded that there was no evidence the defendant's methamphetamine use actually impaired his ability to drive. (Torres, supra, 173 Cal.App.4th at p. 983.) The defendant was pulled over by the police for "a common traffic violation," that is, failing to bring his pickup truck to a complete stop until it had passed the limit line of an intersection, but there was no evidence he was driving erratically. (Id. at p. 983; see id. at p. 979.) For example, the defendant "did not 'blow through' the intersection, he did not lock up the truck's brakes and come to a screeching halt, and he was not involved in any near-miss accidents with other vehicles." (Id. at pp. 979-980.)
In contrast, in the present case, defendant quickly accelerated through a parking lot containing several pedestrians and hit a parked car in addition to hitting two people. Witnesses described defendant as being drunk, Officer Santiago observed symptoms of defendant being impaired such as an unsteady gait, and defendant's behavior while driving was consistent with Burry's description of the effects of alcohol even at a blood-alcohol level of 0.04, including decreased vigilance, decreased inhibition, increased risk-taking behavior, impaired decision making and judgment, and impaired ability to do divided-attention tasks.
In sum, we determine that the record "contains substantial evidence" such that "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Albillar, supra, 51 Cal.4th at p. 60.)
B. Testimony Regarding Defendant Being Under the Influence
During cross-examination, the prosecution asked defendant about being sorry for driving under the influence as follows:
"[THE PROSECUTOR]: And you would agree that it's not a good idea to drive while you're under a combination of methamphetamine, alcohol, and cocaine; right?
"[DEFENDANT]: Yes, sir. It's not a good idea.
"[THE PROSECUTOR]: And yet you drove that day anyways, didn't you?
"[DEFENDANT]: I'm really sorry about that, sir. I know that I made a mistake, sir.
"[THE PROSECUTOR]: So you agree that you drove under the influence?
"[DEFENSE COUNSEL]: Objection, Your Honor. Calls for a legal conclusion.
"THE COURT: You can rephrase.
"[THE PROSECUTOR]: Well, you just said you were sorry; right?
"[DEFENDANT]: Yes. I'm really sorry, to be honest with you, sir.
"[THE PROSECUTOR]: And you're sorry because you drove while you were under the influence; right?
"[DEFENSE COUNSEL]: Same objection, Your Honor.
"THE COURT: Overruled.
"[DEFENDANT]: Yes, sir. I'm really sorry." (Italics added.)
On appeal, defendant contends that the trial court committed prejudicial error by allowing the prosecutor's question, "And you're sorry because you drove while you were under the influence; right?" According to defendant, this question was objectionable for lack of foundation because the prosecutor never established that defendant knew the definition of "driving under the influence," or that defendant understood there is a distinction between driving under the influence and simply driving after consuming alcohol or a drug. Defendant further argues that, in the absence of a foundation that he had personal knowledge of the legal definition of driving under the influence, the answer was not relevant, the question was argumentative, and the question called for speculation.
The Attorney General contends that defendant has forfeited his claim because his objection in the trial court was that the question called for a legal conclusion. The Attorney General further contends that the court did not abuse its discretion in allowing the question, and that defendant was not prejudiced by any error.
" 'A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless: "There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion." ' [Citations.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) In this case, defendant did not object to the prosecutor's question on the specific grounds raised here, so he has forfeited such objections. (Ibid.; Evid. Code, § 353, subd. (a).)
We are not persuaded by defendant's contention that an objection on the ground of legal conclusion is "virtually identical" to an objection on the ground of lack of foundation, such that the latter objection has not been forfeited in this case. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 81-82 [objection based on lack of foundation did not preserve for appeal a claim that testimony was an impermissible opinion regarding another person's credibility].) Defendant's claim in this court regarding lack of foundation is based on his contention that the prosecution failed to establish his understanding of the phrase "under the influence" and failed to establish that he had sufficient knowledge and experience to render an opinion on the issue. An objection on this ground requires a different legal analysis than an objection on the ground that the question calls for a legal conclusion. The latter objection requires a determination of whether the testimony would invade the province of the jury or court. (See Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114.)
Defendant's citations to People v. Partida (2005) 37 Cal.4th 428 (Partida) and People v. Avila (2006) 38 Cal.4th 491 (Avila) do not advance his position. In Partida, the California Supreme Court reiterated that "a trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded," and that "[a] defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial." (Partida, supra, at p. 431.) The Partida court held that a defendant may, however, argue for the first time on appeal that an asserted trial court error in overruling an Evidence Code section 352 objection has the "additional legal consequence" of violating due process. (Partida, supra, at p. 438.) Relying on Partida and other authorities, the California Supreme Court in Avila noted that a defendant's "new constitutional arguments are not forfeited on appeal" if "the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as it was wrong for the reasons actually presented to that court, had the additional legal consequence of violating the federal Constitution." (Avila, supra, at p. 527, fn. 22, italics omitted.) The Avila court explained that, in such a situation, "rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional 'gloss' as well. No separate constitutional discussion is required in such cases . . . ." (Ibid.)
Here, defendant's appellate claim of lack of foundation does not merely assert that the trial court's ruling "insofar as it was wrong for the reason actually presented to that court, had the additional legal consequence" of violating the federal or state Constitution. (Avila, supra, 38 Cal.4th at p. 527, fn. 22, italics omitted; Partida, supra, 37 Cal.4th at p. 438.) As we have explained, his appellate claim of lack of foundation requires the application of a different legal standard than the standard the trial court was asked to apply upon defendant's objection on the ground of legal conclusion. We conclude that defendant's appellate claim is forfeited.
C. Uncharged Hit and Run
Defendant contends that the trial court prejudicially erred by admitting over his Evidence Code sections 1101, subdivision (b), and 352 objections, evidence of his 2005 hit and run to show motive and knowledge. The Attorney General contends that the court did not abuse its discretion in admitting the evidence and that any error was harmless.
1. Proceedings below
a. The court's pretrial ruling
Defendant filed a pretrial motion in limine seeking to exclude evidence of the 2005 hit and run incident as well as evidence of an earlier hit and run incident. He argued that the evidence was inadmissible character evidence under Evidence Code section 1101 and should also be excluded under Evidence Code section 352. Defendant further contended that, if he testified, his prior hit and run convictions (Veh. Code, § 20002, subd. (a)) should not be admitted to impeach him.
The prosecution filed a pretrial motion seeking to admit evidence of the two prior hit and runs from 2003 and 2005. The prosecution argued that uncharged prior similar conduct is admissible to show intent, and that the prior hit and runs were also admissible for impeachment purposes. At the same time, the prosecution sought to exclude defendant's 911 call regarding the charged offenses. The prosecution argued that defendant's 911 call was nearly 30 minutes after the incident, which gave him time to "conjure up self-serving statements" that made "sense in light of the fact that the Defendant ha[d] been arrested and convicted two prior times of committing hit-and-runs."
In written response, defendant reiterated that evidence of his prior hit and run incidents was inadmissible character evidence under Evidence Code section 1101, that the prior incidents were not admissible to impeach him if he testified, and that the prior incidents should also be excluded under Evidence Code section 352. On the issue of character evidence, he argued that the prior hit and run incidents were not sufficiently similar to the alleged conduct in the instant case to support an inference that he harbored the same intent in each instance. Among other differences, defendant contended that in the instant case, he himself called 911 after the incident.
At the hearing on the parties' respective motions, the prosecution contended that the prior incidents showed defendant's knowledge and motive in calling 911 in the instant case. The prosecution believed that defendant would be claiming that the most recent incident was an accident and that he accordingly called 911. The prosecution argued that in the two prior incidents, defendant hit another vehicle, ran, and failed to call 911, but the police found him anyways. According to the prosecution, in the instant case, defendant knew the police were going to eventually find him, so he called 911 and gave a self-serving statement. The prosecution contended that the prior incidents "show that he has knowledge and motive to call 911 in this case, and that it wasn't just . . . some random accident and that he did actually report himself."
Defense counsel contended that there was no direct link between the instant case and the prior incidents. According to defense counsel, the prior incidents involved a trailer that got loose and a "fender bender."
The trial court indicated its understanding of the prosecution's argument that the evidence would show that defendant had a motive to make the 911 call because he had knowledge of what happens in a case where he has left the scene.
Defense counsel contended that the conclusion that defendant called 911 based on years-old prior incidents was speculative, and that the evidence of the prior incidents was more prejudicial than probative. Counsel argued that once the jury learned defendant had prior hit and runs, they would impermissibly use it for propensity.
The prosecution indicated that it was only seeking to admit one prior incident into evidence, and that defendant could select which one. For that reason, the prosecution argued that it was not prejudicial under Evidence Code section 352.
The trial court ruled that the prior incidents would not be admitted under Evidence Code section 1101, subdivision (b), based on an Evidence Code section 352 balancing. The court explained that it had already ruled that defendant's 911 call would not be admitted into evidence. The court stated that a motion to admit the prior hit and run incidents could be renewed if, for example, evidence at trial made it relevant whether defendant's 911 call was explaining what happened from the defense perspective or a motive to lie from the prosecution's perspective. The court further ruled that the 2005 hit and run incident, which was the more recent of the two prior hit and run incidents, would be admitted for impeachment purposes.
b. The court's ruling during trial
Near the end of the prosecution's case-in-chief, but before any evidence was presented regarding a prior hit and run by defendant, the trial court and the parties revisited the issue outside the presence of the jury. Based on the evidence that had been presented at trial, the court found that the relevant issues included the circumstances surrounding defendant leaving the scene and the circumstances surrounding him reporting the incident to 911. It was the court's understanding that the prosecution wanted to introduce the prior hit and run to show defendant's state of mind and motive for calling 911, as opposed to showing a motive to commit the charged offense. The court indicated the evidence of the prior incident was related to the elements of the charged hit and run and whether defendant complied with the law by reporting the incident.
Defense counsel contended that there was no nexus or direct link between the prior incident and the charged crime and therefore the prior incident was not admissible to show motive. Defense counsel argued that it was common knowledge a person gets in trouble for a hit and run, and that the prior incident was therefore less probative than prejudicial.
The trial court asked the prosecution whether the argument could still be made that defendant had a self-serving reason to make a call after he left the scene, regardless of the prior hit and run. The prosecution acknowledged that the argument could still be made, but contended that there were no facts to substantiate that motive. The prosecution argued that based on the prior hit and run where defendant failed to call 911, he knew he was going to get caught. As a result, after the charged offense occurred, he wanted to give his own self-serving story first by calling 911.
The trial court concluded that it would allow evidence of the 2005 incident under Evidence Code section 1101 "to show knowledge and motive and to explain the defendant's actions on that evening." Regarding the probative value, the court found that "it does explain a different reason for him to call the police consistent with the People's theory." The court determined that the prior incident was "not particularly prejudicial," because the prior incident occurred "some time ago, clearly a completely different circumstance and much, much lesser charge than we're dealing with here and could be explained away by the [d]efense fairly easily." At some point during the trial, the court also ruled that defendant's 911 call could be played for the jury.
c. Evidence of prior conduct presented to the jury
As we have set forth, the evidence at trial reflected that defendant was involved in a hit and run incident in 2005. A police officer testified that, after defendant was identified as a suspect, defendant admitted that a trailer he had been pulling detached and hit another vehicle. On cross-examination, defendant admitted that he was convicted of hit and run, and that he had engaged in dishonest behavior by going home and not stopping.
d. Limiting instruction
The trial court instructed the jury that it could consider evidence that defendant committed a prior hit and run for the limited purpose of deciding motive and knowledge. Pursuant to CALCRIM No. 375, the jury was instructed to not consider this evidence for any other purpose, to not conclude from this evidence that the defendant had a bad character or was disposed to commit crime, that the evidence was not sufficient by itself to prove that the defendant was guilty of the crimes in this case, and that the prosecution must still prove the charged offenses beyond a reasonable doubt. The jury was also instructed pursuant to CALCRIM No. 316 that if it found that a witness had committed a crime or other misconduct, it could consider that fact in evaluating the credibility of the witness's testimony.
e. Arguments to the jury concerning prior conduct
The prosecutor argued to the jury without objection that defendant was callous, and that his behavior was offensive when he called 911 because he did not initially disclose that he might have hit someone and that the person might need help. Instead, defendant reported that he was attacked, setting up his own defense. The prosecutor argued that the kind of person who does that is someone who hits a car and does not report it because he does not want his vehicle repossessed or towed. The prosecutor contended that it was callous and selfish. The prosecutor argued that defendant had a lot of choices on the night of the incident, including calling 911 at various points in time. However, after running over two people and hitting a parked car, "he was desperate. How was he going to get out of this one? He was caught before. He knows he's going to get caught this time. How's he gonna get out of it?" The prosecutor indicated that defendant did not call 911 until about 30 minutes later, that he didn't want to face the consequences of his actions, and that he used the time to think of what he was going to tell the police. The prosecutor argued that defendant was "coming up with an excuse because he knows exactly what he needs to do because he's done it before. [¶] . . . He's hiding from the police because he knows he's going to get caught because he got caught in 2005, when he did the same crime, and the police found him ten days after he committed the crime." The prosecutor argued it was selfish behavior when defendant did not call the police in the prior hit and run because he did not want his car to get impounded. The prosecutor argued that the instant case involved the same situation where defendant "doesn't want to get caught because he doesn't want to deal with the consequences, so he takes that time to come up with an idea of what he's going to say, and that's what he says on the 911" call.
2. Applicable law
" ' "Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition. . . ." ' " (People v. Thomas (2011) 52 Cal.4th 336, 354 (Thomas).) Specifically, " '[s]ubdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.' [Citation.] 'Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue,' " such as motive or knowledge. (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava); accord, People v. Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix).)
Generally, "there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (People v. Jones (2011) 51 Cal.4th 346, 371 (Jones).) For uncharged misconduct to be admissible on the issue of knowledge, "the degree of similarity required depends on the specific knowledge at issue and whether the prior experience tends to prove the knowledge defendant is said to have had in mind at the time of the crime." (Hendrix, supra, 214 Cal.App.4th at p. 241.) For uncharged misconduct to be admissible on the issue of motive, there must be "a nexus between the prior crime and the current one." (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.) The motive for the charged crime may arise "simply from the commission of the prior offense." (Ibid.)
" ' "There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" ' " (Thomas, supra, 52 Cal.4th at p. 354; see Evid. Code, § 352.) " 'Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]' [Citation.] ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." [Citation.]' [Citation.]" (Fuiava, supra, 53 Cal.4th at pp. 667-668, fn. omitted.)
Defendant contends that the trial court prejudicially erred by admitting evidence of his prior hit and run to show motive and knowledge pursuant to Evidence Code section 1101, subdivision (b). He also contends that the evidence should have been excluded under Evidence Code section 352.
The charges against defendant included misdemeanor hit and run (Veh. Code, § 20002, subd. (a)), two counts of assault involving Garrido and his son (§ 245, subd. (a)(1)), and driving under the influence of alcohol and drugs, causing injury (former Veh. Code, § 23153, subd. (a)). On the hit and run count, the jury was instructed that the prosecution had to prove either that (1) defendant willfully failed to immediately stop at the scene of the accident, or (2) willfully failed to immediately provide the owner of the damaged property with his name and other required information. (See CALCRIM No. 2150.) The jury was further instructed that a driver may provide the required information either directly to the owner of the damaged property, or may leave a written note and then notify the police without unnecessary delay. (See id.) The jury was also instructed that the duty to immediately stop means the driver must stop the vehicle as soon as reasonably possible under the circumstances. (See id.)
As the trial court found, the relevant issues in the case included the circumstances of defendant leaving the scene of the incident and of him reporting the incident to the police. The prosecution's theory was that defendant knew he was going to get caught by the police, that he did not call 911 for nearly 30 minutes after the incident because he was trying to come up with a story, and that he only called 911 so that he could provide self-serving statements to the police first. The defense theory, in contrast, was that defendant was being attacked, that he accidentally hit people and a car as he tried to escape, and that he pulled over as soon as he could to call 911 and to report the incident.
Thus, the circumstances and content of the 911 call were relevant issues in the case. Evidence that defendant had previously been involved in a hit and run, and that the police were still able to catch him, was relevant to the prosecution's theory that defendant called 911 nearly 30 minutes after the incident only so he could provide self-serving statements to the police first. Defendant's knowledge, based on the prior hit and run, that the police could still find him, supported an inference that he called 911 after the charged hit and run and other offenses to try to minimize or escape responsibility for the charged offenses. As evidence of defendant's prior hit and run and being located by the police was " 'logically, naturally, and by reasonable inference relevant to prove' " why defendant called 911 after the charged offenses, including after the charged hit and run, the trial court did not abuse its discretion in determining that the prior misconduct was admissible under Evidence Code section 1101, subdivision (b). (Fuiava, supra, 53 Cal.4th at p. 667.)
We also determine that the trial court did not abuse its discretion in refusing to exclude the evidence under Evidence Code section 352. The evidence regarding the prior hit and run was relatively brief and not very detailed. (See Jones, supra, 51 Cal.4th at p. 371.) In addition, the prior hit and run, which involved another vehicle being struck, was not particularly inflammatory when compared to the evidence of the charged crimes, in which two people were hit - with one seriously injured - in addition to a car. The jury was also instructed on the proper purpose for which the evidence could be considered, "which we presume the jury followed." (Ibid.) The fact that defendant was convicted of the earlier hit and run also lessened the risk that the jury would want to punish defendant for that crime. (Id. at pp. 371-372.) Moreover, the court ruled that the prior hit and run was also admissible to impeach defendant's credibility, and thus the jury would have learned about the prior incident for this reason. On this record, the trial court did not abuse its discretion by determining that the probative value of the prior hit and run was not substantially outweighed by a danger of undue prejudice. (Evid. Code, § 352; see Jones, supra, at p. 371; People v. Kipp (1998) 18 Cal.4th 349, 372.)
Even assuming the trial court erred in admitting the evidence of defendant's prior hit and run on the issue of motive and knowledge, any such error was harmless because there is no reasonable probability the jury would have returned a more favorable verdict had the evidence not been admitted for this purpose. (People v. Malone (1988) 47 Cal.3d 1, 22 (Malone); Thomas, supra, 52 Cal.4th at p. 356.) First, as we have stated, the trial court ruled that the prior hit and run was also admissible to impeach defendant's credibility and, as we will explain below, that ruling was proper. Hence the jury would have learned about the prior hit and run, although for different purpose.
Second, the evidence supporting defendant's convictions for two counts of assault with a deadly weapon, using a controlled substance, hit and run, and driving under the influence of alcohol and/or drugs causing injury was compelling. There was no dispute that defendant hit Garrido, his son, and a parked car with his own truck. Defendant admitted drinking alcoholic beverages and consuming cocaine before the incident, and lab tests confirmed that defendant had those substances in his system along with methamphetamine. Expert Burry testified that alcohol enhances the effects of cocaine, and that cocaine and methamphetamine would not reverse alcohol-impaired driving with respect to poor judgment, increased disinhibition, and decreased ability to perform divided-attention tasks. The witnesses to the incident who testified, and those whose 911 calls were played at trial, all characterized defendant's demeanor as drunk or crazy, and some also described his aggressive and threatening conduct. Officer Santiago observed defendant shortly after the incident exhibiting symptoms consistent with those reflecting impairment, including smelling of alcohol, red and watery eyes, and an unsteady gait. The only people who encountered defendant who did not report him as drunk were either distant in location (the woman whose house defendant appeared at) or distant in time from the incident and admittedly not "pay[ing] much attention" to him (the lab employee who obtained a blood sample from defendant).
Moreover, no witness from the bar or the parking lot provided testimony that supported defendant's version of what occurred prior to or during the incident, such as his claim that people in the bar and in the parking lot were the aggressors who were threatening him with nonverbal or verbal conduct. Likewise, none of the 911 callers suggested that defendant had been attacked and was trying to escape at the time he hit the victims or struck the parked car. Even without considering the prosecution's evidence, defendant's own testimony about the events was less than credible. For example, he claimed that a person was freely offering cocaine to everyone in the bathroom of the bar, and that he willingly inhaled it even though he did not know the person and did not know at the time what the substance was. Defendant also claimed he was being attacked in his truck, including being hit and pulled out which resulted in scratches to his face, yet he was later booked into jail without needing clearance from the hospital, which is normally requested when a suspect is injured. Moreover, he claimed to have deliberately made his tires screech to scare off the group attacking him. Although defendant claimed he was under attack, the evidence reflected that he did not take the most direct route to the parking lot exits, and that he even turned in the opposite direction of a route that would have allowed him to immediately exit the parking lot. Defendant also claimed that he thought his vehicle was being shot at, but he never reported to 911 that he had heard gunshots. He also did not explicitly report in the 911 call that he may have hit a person or that someone in the parking lot may have been injured, although at trial he admitted that he hit something that "could have been a person" and that by the time he called 911 he "felt" that he had hit one person. Defendant further claimed that when the police made contact with him, they were "playing around with [him]" and asking him about the fragrance he was wearing and stating that it smelled "nice."
In view of the compelling evidence against defendant, and defendant's own testimony presenting a version of the events that was difficult to believe, it is not reasonably probable that defendant would have obtained a more favorable outcome on any of the counts for assault with a deadly weapon, using a controlled substance, hit and run, or driving under the influence of alcohol and/or drugs causing injury had the evidence of his prior hit and run not been admitted for the purposes of determining motive and knowledge. (Malone, supra, 47 Cal.3d at p. 22; Thomas, supra, 52 Cal.4th at p. 356.)
D. Impeachment Evidence
Defendant contends that the trial court erred by allowing the prosecution to impeach him with his prior misdemeanor convictions for infliction of corporal injury and hit and run. Specifically, defendant argues that the court prejudicially erred by (1) admitting evidence of his conviction for infliction of corporal injury, rather than admitting evidence of the underlying conduct, (2) admitting evidence of the prior hit and run when it is not a crime of moral turpitude, and (3) failing to engage in an adequate Evidence Code section 352 analysis.
The Attorney General contends that the record reflects that the trial court engaged in the requisite balancing, that the trial court properly admitted the evidence, and that defendant was not prejudiced by any error.
1. Proceedings below
As we have set forth, the parties filed competing pretrial motions seeking to exclude or admit evidence of defendant's two prior misdemeanor convictions for hit and run (Veh. Code, § 20002, subd. (a)) for impeachment purposes if he testified at trial. The parties also sought to exclude or admit evidence of defendant's 2012 misdemeanor conviction under former Penal Code section 273.5, subdivision (e)(2) (inflicting corporal injury on a spouse or cohabitant within seven years of a specified previous conviction). Relevant here, the 2005 hit and run involved defendant failing to stop after his trailer came off and hit the victim's car. Regarding the conviction for inflicting corporal injury, the parties did not provide the court with any details about the offense.
In his written motion, defendant contended that the misdemeanor convictions should be excluded under Evidence Code section 352. Defendant argued that the convictions did not show dishonesty; that any conviction from 2004 or earlier should be excluded as too remote in time; that the prior hit and run convictions involved the same Vehicle Code violation as the instant case and thus their admission would be unduly prejudicial; and that admission of the exact same or markedly similar priors would have a chilling effect on defendant's decision to testify.
The prosecution contended in a written motion that the misdemeanor convictions were admissible because they were crimes of moral turpitude.
In a written response, defendant sought "clarification that the prosecution is seeking admission of the misdemeanor convictions to impeach (not the underlying conduct) should [defendant] choose to testify in this case." (Bold omitted.) Defendant argued that none of the convictions reflected dishonesty; that the hit and run convictions should be excluded under Evidence Code section 352 because they were too remote in time and too similar to the charged offense; and that admitting the hit and run convictions would likely influence him to not testify. Defendant requested that if the hit and run convictions were admitted, that they be "sanitized" to "a driving related conviction."
At a February 13, 2015 hearing, the trial court ruled that defendant's section 273.5 conviction would be admitted for impeachment because a section 273.5 offense is a crime of moral turpitude. In making its ruling, the court observed that defendant provided "very thorough papers that were done by a law student." The court allowed defendant to make "further argument." Defendant stated to the court, "you've made it very clear that you read my papers. So I'm not going to . . . reiterate. It's just that the distinction I'm making is that the [c]ase [l]aw makes it clear that the felony 273.5 is an act of - or commission of moral turpitude. [¶] But a misdemeanor - there's no case law that states, per [se], that a misdemeanor is. And I understand the Court's ruling. So thank you."
At a February 23, 2015 hearing on the parties' respective motions, the trial court ruled that the 2005 hit and run conviction would be admitted for impeachment purposes if defendant testified. The court found that the misdemeanor conviction was a crime of moral turpitude, based on a rationale or analysis similar to that applied to a felony hit and run, which is a crime of moral turpitude. The court also ruled that "under a 352 balancing," the 2005 hit and run was admissible because it was within 10 years, and that it would be admitted in a "sanitized" version. After hearing further argument from defendant, the court again stated, "I'm trying to balance it under 352 and have it come in sanitized, and I will limit it to one, the more recent one." The court clarified that only the fact of the 2005 hit and run conviction would be admitted, unless during trial the underlying conduct became "more relevant" or otherwise came in for a separate reason. Near the end of the prosecution's case-in-chief, as we have stated, the court ruled that evidence of the 2005 hit and run was admissible under Evidence Code section 1101 "to show knowledge and motive and to explain the defendant's actions on that evening."
First, defendant contends that the trial court erred by admitting evidence of his conviction for infliction of corporal injury, rather than admitting evidence of the underlying conduct.
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction." (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).) In this case, defendant admitted on cross-examination that he was convicted in 2012 for "domestic violence." No evidence was presented as to the underlying facts of the conviction. "Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 373.) The reason for this rule is that "misdemeanor convictions are inadmissible hearsay when offered to prove the underlying criminal conduct." (People v. Wheeler (1992) 4 Cal.4th 284, 298 (Wheeler).) However, a defendant forfeits the hearsay objection by failing to make a trial objection on that specific ground. (Id. at p. 300.)
Defendant on appeal fails to provide a record citation establishing that he objected below to admission of the "domestic violence" conviction on hearsay grounds, or that he otherwise objected to the admission of the conviction instead of the underlying conduct. Consequently, "admission of [his] misdemeanor conviction to impeach [his] credibility cannot serve as grounds for reversal of the judgment." (Wheeler, supra, 4 Cal.4th at p. 300; accord, People v. Cadogan (2009) 173 Cal.App.4th 1502, 1507 ["Although defendant was improperly asked about his misdemeanor convictions rather than his prior conduct leading to misdemeanor convictions, defendant did not raise a timely hearsay objection to the prosecutor's questions and is therefore foreclosed from seeking relief on appeal"]; id. at pp. 1513-1515.) Further, even assuming that defendant did not forfeit his claim and that the court erred by admitting evidence of the conviction itself, defendant fails to demonstrate that he would have obtained a more favorable verdict had the court admitted evidence of the underlying conduct instead.
Second, defendant contends that misdemeanor hit and run is not a crime of moral turpitude, and that therefore his prior hit and run should not have been admitted for impeachment.
A crime involves moral turpitude where the commission of the offense evidences a " 'general readiness to do evil.' " (People v. Castro (1985) 38 Cal.3d 301, 314, italics omitted (Castro).) If a readiness to do evil "can reasonably be inferred from the elements of the offense alone without regard to the facts of the particular violation," the prior offense is admissible for impeachment purposes. (People v. White (1992) 4 Cal.App.4th 1299, 1303 (White).)
According to the parties' pretrial motions, defendant's 2005 hit and run resulted in a conviction under Vehicle Code section 20002, subdivision (a). This subdivision provides that the driver of a vehicle "involved in an accident resulting only in damage to any property" must immediately stop at the nearest location that does not impede traffic or jeopardize the safety of other motorists. (Ibid.) The driver must also immediately do one of the following: (1) locate the owner of the property and provide specified information, including the driver's name and address and upon request the driver's license and vehicle registration, or (2) leave a written note in a conspicuous place on the damaged property with specified information, including the driver's name and address and the circumstances of the accident, and notify law enforcement. (Id., subd. (a)(1) & (2).) A violation of the statute is a misdemeanor. (Id., subd. (c).)
Vehicle Code section 20002, subdivision (a) states in full: "The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault. The driver shall also immediately do either of the following: [¶] (1) Locate and notify the owner or person in charge of that property of the name and address of the driver and owner of the vehicle involved and, upon locating the driver of any other vehicle involved or the owner or person in charge of any damaged property, upon being requested, present his or her driver's license, and vehicle registration, to the other driver, property owner, or person in charge of that property. The information presented shall include the current residence address of the driver and of the registered owner. If the registered owner of an involved vehicle is present at the scene, he or she shall also, upon request, present his or her driver's license information, if available, or other valid identification to the other involved parties. [¶] (2) Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol."
In People v. Bautista (1990) 217 Cal.App.3d 1 (Bautista), the appellate court held that a felony violation of Vehicle Code section 20001, hit and run driving causing injury, is an offense involving moral turpitude. The court explained that Vehicle Code "[s]ection 20001, felony hit-and-run, provides in part that the driver of any vehicle involved in an accident resulting in injury or death to any person other than himself shall immediately stop the vehicle and shall fulfill the requirements of [Vehicle Code] sections 20003 and 20004, and any person failing to stop or to comply with the requirements under such circumstances is guilty of a public offense. [Vehicle Code section] 20003 provides that the driver of any vehicle involved in an accident resulting in injury of any person shall give his name, address, registration number of the vehicle, and his driver's license number, to any person that is struck or the driver or occupants of any vehicle collided with, and shall render reasonable assistance to any person injured in the accident, including the carrying or the making of arrangements for the carrying of such person to a physician for medical treatment if it appears that treatment is necessary." (Bautista, supra, at p. 6.)
A violation of Vehicle Code section 20001 is punishable either as a felony or misdemeanor. (Id., subd. (b).)
Vehicle Code section 20004 provides: "In the event of death of any person resulting from an accident, the driver of any vehicle involved after fulfilling the requirements of this division, and if there be no traffic or police officer at the scene of the accident to whom to give the information required by [Vehicle Code] Section 20003, shall, without delay, report the accident to the nearest office of the Department of the California Highway Patrol or office of a duly authorized police authority and submit with the report the information required by [Vehicle Code] Section 20003." --------
In determining whether the offense involves moral turpitude, the appellate court explained that the issue was whether "the failure of the driver involved in an injury-accident to perform any of the requirements under [Vehicle Code] section 20003, i.e., failing to give his/her name, address, driver's license number, or the registration number of the car, [would] infer moral turpitude." (Bautista, supra, 217 Cal.App.3d at p. 6.) The court observed that the purpose behind the statute was " 'to make complete information available at the time the accident occurs and before participants and witnesses disappear.' [Citation.] The statute is designed to prevent the driver of a car involved in an accident from leaving the scene without furnishing information as to his identity and to prevent him from escaping liability. 'One of the duties that accompanies the right and privilege of driving a vehicle upon a public thoroughfare is to give such information.' [Citation.]" (Id. at p. 7.) The court concluded: "It is more than likely that one who is involved in an injury-accident and leaves the scene before giving the required identifying information is seeking to evade civil or criminal prosecution. At the very least then, a person convicted of violating [Vehicle Code] section 20001 has exhibited an intent and purpose of concealing his identity and also his involvement in an injury-accident. One can certainly infer that such a mental state indicates a 'general readiness to do evil' or moral turpitude." (Ibid.)
We believe Bautista's reasoning regarding a felony violation of Vehicle Code section 20001 (hit and run driving causing injury) applies equally to a misdemeanor violation of Vehicle Code section 20002, subdivision (a) (hit and run driving causing property damage). Similar to Vehicle Code section 20001, the purpose of Vehicle Code section 20002, subdivision (a) " 'is to provide the owners of property damaged in traffic accidents with the information they need to pursue their civil remedies.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1124 (Carbajal).) Vehicle Code section 20002 and its predecessor "were 'undoubtedly enacted by the Legislature to protect owners of unattended vehicles from financial loss caused by irresponsible persons who damage such vehicles and attempt to escape liability by departing from the scene of the accident without leaving any identification or evidence by which to trace them.' [Citation.]" (Carbajal, supra, at pp. 1124-1125.) Consequently, a person convicted of violating Vehicle Code section 20002, subdivision (a), similar to a person convicted of violation Vehicle Code section 20001, "has exhibited an intent and purpose of concealing his identity and also his involvement in an [accident]. One can certainly infer that such a mental state indicates a 'general readiness to do evil' or moral turpitude." (Bautista, supra, 217 Cal.App.3d at p. 7.)
We are not persuaded by defendant's reliance on Cerezo v. Mukasey (9th Cir. 2008) 512 F.3d 1163 (Cerezo). In Cerezo, the Ninth Circuit Court of Appeals held that the elements of a Vehicle Code section 20001 offense (hit and run driving causing injury) do not fall "within the federal definition of crimes involving moral turpitude" for purposes of deportation under federal immigration law although the court found "the issue . . . close." (Cerezo, supra, at pp. 1168-1169.) Unlike Cerezo, the instant case involves whether a crime involves moral turpitude under state law, not federal law.
Further, in determining that a Vehicle Code section 20001 conviction does not involve moral turpitude under the federal definition, the Cerezo court stated as follows: "Reading [Vehicle Code] § 20001(a) literally, a driver in an accident resulting in injury who stops and provides identification, but fails to provide a vehicle registration number, has violated the statute. The failure to provide a vehicle registration number under such circumstances is not base, vile and depraved; nor does it necessarily evince any willfulness or evil intent, a requisite element of crimes of moral turpitude." (Cerezo, supra, 512 F.3d at p. 1167.) We observe, however, that none of the cases cited in Cerezo involved a driver who provided identification but was nonetheless convicted for failing to provide a vehicle registration number. Rather, the cases cited in Cerezo involve defendants who failed to voluntarily stop at all, or stopped for a period, but did not provide any identification or aid before leaving the scene. (Id. at p. 1168; People v. Newton (2007) 155 Cal.App.4th 1000, 1002 [the defendant ran away after the collisions]; Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 516-517, 520, 523 [the defendant stopped but did not provide identification or render assistance to the injured victims before leaving the scene]; People v. Limon (1967) 252 Cal.App.2d 575, 577-579 [the defendant left the scene without giving his name to the victim and without rendering assistance]; People v. Jordan (1963) 214 Cal.App.2d 400, 402, 403 [the defendant stopped immediately after the accident but left the scene without identifying himself or rendering aid to the injured victims].) Consequently, we are not convinced that a driver "who stops and provides identification, but fails to provide a vehicle registration number" (Cerezo, supra, at p. 1167) would necessarily be convicted under Vehicle Code section 20001, subdivision (a).
We need not resolve that issue however, because Cerezo is distinguishable for another reason. Although the statutes at issue in Cerezo - Vehicle Code sections 20001, subdivision (a) and 20003 - require without qualification that a driver who is involved in an accident resulting in injury to provide a vehicle registration number, the statute at issue in this case - Vehicle Code section 20002 - requires a driver who is involved in an accident resulting in property damage to present the vehicle registration only "upon being requested" by the owner of the property that is damaged. (Veh. Code, § 20002, subd. (a)(1).) We believe that it is "more than likely" that a driver who is involved in an accident resulting in property damage and who fails to provide the required identifying information (name and address) or, upon request, driver's license and vehicle registration before leaving the scene "has exhibited an intent and purpose of concealing his [or her] identity and also his [or her] involvement" in the accident, and that such a mental state gives rise to an inference of a " 'general readiness to do evil' or moral turpitude." (Bautista, supra, 217 Cal.App.3d at p. 7.) Therefore, we conclude that the trial court did not err in determining that evidence of defendant's prior hit and run, which resulted in a misdemeanor conviction under Vehicle Code section 20002, subdivision (a), was admissible to impeach his credibility. (See Wheeler, supra, 4 Cal.4th at pp. 295-296; Castro, supra, 38 Cal.3d at p. 314; White, supra, 4 Cal.App.4th at p. 1303.)
Third, defendant contends that even if his prior hit and run involved moral turpitude, and conceding that his prior offense of inflicting corporal injury "potentially" involved moral turpitude, "the trial court engaged in an inadequate analysis under [Evidence Code] section 352 in ruling that [he] could be impeached with both prior acts." Defendant argues that, although the court excluded one of his prior hit and run offenses, "it engaged in no other analysis, particularly whether the priors were of sufficient probative value so as to outweigh their prejudicial nature." According to defendant, the court "engaged in no balancing analysis" and "did nothing more than find that section 273.5 and Vehicle Code [section 20002, subdivision (a)] were crimes of moral turpitude."
We are not persuaded by defendant's contention that the trial court failed to engage in any, or an adequate, Evidence Code section 352 analysis regarding his prior offenses involving inflicting corporal injury and hit and run. " '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.]" (Clark, supra, 52 Cal.4th at p. 931.) "[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion [citations]." (Clark, supra, at p. 932.)
Regarding his prior conviction for inflicting corporal injury, defendant argued in his written pretrial motion that the conviction should be excluded under Evidence Code section 352, because the offense did not show dishonesty. The court, in ruling that the conviction was admissible, complimented defendant on the "very thorough papers that were done by a law student" and gave defendant the opportunity to make further oral argument. Defendant responded that it was "very clear" that the court had "read [his] papers" and indicated that he understood the court's ruling.
Although defendant contended below that the conviction for inflicting corporal injury should be excluded under Evidence Code section 352 because the offense did not show dishonesty, defendant on appeal concedes that a violation of section 273.5 is potentially an act of moral turpitude. Indeed, "California courts have held that section 273.5 is a crime of moral turpitude because the statute protects individuals who are in special relationships 'for which society rationally demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable. To have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it wilfully and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude.' [Citations.]" (People v. Burton (2015) 243 Cal.App.4th 129, 134, fn. omitted.) As the offense involves moral turpitude, there is " 'some basis . . . for inferring' " that a defendant who has committed the offense, even if dishonesty is not an element, " 'is more likely to be dishonest than a witness about whom no such thing is known.' " (Wheeler, supra, 4 Cal.4th at p. 295.)
The record thus reflects that the trial court considered defendant's written motion, which sought to exclude the prior conviction for inflicting corporal injury on the ground that it did not involve moral turpitude, and under Evidence Code section 352 on the ground that it did not show dishonesty. At the hearing on the motion, defendant reiterated the moral turpitude argument. Defendant does not renew this assertion on appeal and instead concedes that the offense is potentially an act of moral turpitude. On this record, defendant fails to establish that the trial court undertook an inadequate Evidence Code section 352 analysis, or that the court otherwise abused its discretion in admitting the evidence, in light of the arguments he raised below.
Regarding defendant's prior hit and run offense, the trial court expressly referred to the balancing it had conducted under Evidence Code section 352 in ruling that only the more recent of defendant's two prior hit and run offenses was admissible for impeachment. Defendant fails to establish that the court's ruling was an abuse of discretion. "Admissibility of impeachment evidence under the Evidence Code section 352 balancing test may involve an inquiry into (1) whether the prior conviction reflects on honesty, (2) whether it is remote in time, (3) whether it is similar to the conduct for which the witness-accused is on trial, and (4) what effect admission would have on the defendant's decision to testify. [Citation.]" (People v. Robinson (2011) 199 Cal.App.4th 707, 716; accord, Clark, supra, 52 Cal.4th at p. 931.) " '[C]ourts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation]." (Clark, supra, at p. 932.)
As we have explained, a hit and run offense involves moral turpitude, and thus defendant's prior conduct suggests " 'a willingness to lie.' " (Clark, supra, 52 Cal.4th at p. 932.) Defendant on appeal does not contend that the prior hit and run, which occurred in 2005, was remote in time to the instant offenses that occurred in 2013. Although the prior hit and run and one of the charged offenses involved the same Vehicle Code violation, this similarity is only one factor for the court to consider when balancing probative value against prejudice; it is not dispositive. (Clark, supra, at p. 932; People v. Edwards (2013) 57 Cal.4th 658, 722 (Edwards).) The circumstance that defendant had been convicted of the prior hit and run "would serve to decrease the prejudice" of the prior hit and run "because 'the jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for' " the prior offense. (Edwards, supra, at p. 722.) The presentation of the evidence regarding the prior hit and run was also relatively brief in relation to the rest of the trial. Further, although "evidence that a defendant committed a series of crimes is more probative of his credibility than a 'single lapse' " (Clark, supra, at p. 933), the court nevertheless excluded one of defendant's prior hit and runs as too remote. Excluding both prior hit and runs, as well as his offense for inflicting corporal injury, "would have clothed defendant in a ' " 'false aura of veracity.' " ' [Citation.]" (Id. at p. 932.) The admission of the prior conduct clearly did not discourage defendant from testifying at trial. On this record, defendant fails to demonstrate that the court abused its discretion in refusing to exclude evidence of his prior hit and run.
E. Garrido's Lay Opinion
Defendant contends that the trial court erred by permitting Garrido, one of the two people struck by defendant's truck, to testify twice over objection that defendant appeared to be "looking for someone" when he was driving in the parking lot. Defendant argues that the testimony was without foundation and an improper opinion on defendant's intent and state of mind, suggesting that defendant's driving pattern was not the result of recklessness, intoxication, or fear, but rather a purposeful act designed to seek out and hit specific people. Defendant further contends that the testimony was prejudicial because it rebutted defendant's own testimony. The Attorney General contends that the testimony was properly admitted and that any error was harmless.
1. Proceedings below
Garrido, one of the two people struck by defendant's truck, was asked by the prosecutor on direct examination, "How did you become injured?" Garrido, who testified with the assistance of an interpreter, responded: "Because the white truck was spinning in the parking, like - I'm sorry - going around in the parking, like seeking someone out." (Italics added.) Defendant objected and moved to strike the testimony "like seeking someone out." The court overruled the objection. Later, the prosecutor asked Garrido about defendant's driving and whether it was slow or fast. Garrido testified that defendant was "squealing his tires." The prosecutor then asked, "[W]hen you say squealing your tires, can you describe what you mean?" Garrido responded, "Like accelerating a lot and spinning around, like, looking for someone." (Italics added.) Defendant objected on the grounds of lack of foundation and speculation. The court overruled the objection and explained, "Again it's just based on his observations, and I will allow cross-examination." Defendant, seeking to clarify his objection, indicated that he was objecting to the portion of Garrido's testimony where he said that defendant was looking around. The court indicated that it had understood the objection and reiterated that the objection was overruled. The interpreter subsequently clarified that the interpreter had used the word "spinning," but after listening to the rest of defendant's testimony the interpreter should have said "going around."
Garrido further testified that when defendant "was going around," Garrido and his son thought defendant "was going to leave." However, they eventually realized that "the truck was coming towards [them] to hit [them]." Garrido's first thought was to push his son and to protect him, but at the moment he pushed his son, defendant hit both of them.
2. Applicable Law
" ' "A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony (Evid. Code, § 800, subd. (b)), 'i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.' [Citation.]" [Citation.] Such a situation may arise when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on "subtle or complex interactions" between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations. [Citations.] A lay witness generally may not give an opinion about another person's state of mind, but may testify about objective behavior and describe behavior as being consistent with a state of mind. [Citation.] . . . A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion.' [Citations.]" (People v. Sánchez (2016) 63 Cal.4th 411, 456 (Sánchez).)
In Sánchez, a witness testified that the defendant aimed a gun at him and tried to shoot him but there were no bullets in the gun. (Sánchez, supra, 63 Cal.4th at pp. 454-455.) Relevant here, the witness further testified that the defendant " 'wanted' " to change the clip in the gun. (Id. at p. 455.) The witness admitted that he did not see the defendant taking out or putting in a new clip, but testified that the defendant " 'made a gesture as to remove the clip that was there.' " (Ibid.)
On appeal, the defendant contended that the trial court should have stricken the testimony about him wanting to change the clip and his gesture. The California Supreme Court determined the witness's testimony that the defendant made a gesture that to the witness indicated defendant was about to replace the clip was properly admitted as lay opinion testimony. (Sánchez, supra, 63 Cal.4th at p. 456.) The court reasoned: "Exactly what occurred in the few seconds during which defendant pointed the gun at [the witness] was subtle and complex, and the court could reasonably conclude it would be impossible to convey [the witness's] concrete observations other than through the testimony it permitted. In sum, the court acted within its discretion in concluding that [the witness's] testimony was not speculative but based on his observations, and leaving it to the jury to evaluate it." (Ibid.)
Garrido had firsthand knowledge of defendant's driving behavior before defendant struck him. The trial court could reasonably conclude that exactly what occurred in that short period before Garrido was struck was subtle or complex, and that it would be impossible to convey Garrido's concrete observations other than through the testimony the court permitted. (See Sánchez, supra, 63 Cal.4th at p. 456.)
Even if it was error for the trial court to permit Garrido's testimony that defendant was "like seeking someone out" and "like, looking for someone," we determine that defendant could not have been prejudiced by the testimony. Garrido provided specific and compelling testimony that defendant was directing his vehicle toward someone. Garrido referred to the truck "going around" in the parking lot, the truck's "squealing" tires, and the truck "accelerating a lot" before Garrido was struck. Moreover, additional evidence was presented at trial regarding the route of defendant's vehicle and his acceleration before hitting the victims, which supported Garrido's observations and opinion. A police diagram and other exhibits reflected that defendant drove out of his parking spot and turned left at the end of the parking aisle, driving deeper into the parking lot, instead of turning right to immediately exit the parking lot. Defendant turned left again and drove into the next parking aisle, where he proceeded to drive into the parking spots and hit a parked vehicle and the victims. Garrido's son testified that after he and his father started walking, the driver "floored it" and hit them. Ramirez, who was present in the parking lot, testified that when two people were in front of the truck, the truck sped up and hit the people. In view of the circuitous route that defendant traveled before exiting the parking lot, combined with the evidence that he accelerated before hitting the victims, there is no reasonable probability of a different result even if Garrido's opinion had been omitted. (People v. Hinton (2006) 37 Cal.4th 839, 889.)
F. Instruction on Driving Under the Influence
Defendant contends that the driving under the influence instruction allowed the jury to convict him based on a legally incorrect theory — i.e., that he was guilty based in part on the illegal act of committing a hit and run. Because the illegal act must have also caused injury to another person (Veh. Code, § 23153, subd. (a)), and because the criminal act in a hit and run offense is the post-accident conduct, that is, fleeing from the scene (see People v. Martinez (2017) 2 Cal.5th 1093, 1102), defendant argues that his post-accident conduct could not have been the cause of an injury to another person. Defendant contends that the court accordingly misinstructed the jury on this point and that reversal is required because there is no basis to find that the jury's driving under the influence verdict was actually based on a valid legal theory.
The Attorney General contends that the jury was properly instructed and that any error was harmless.
1. Proceedings below
The trial court instructed the jury pursuant to CALCRIM No. 2100 regarding the elements of driving under the influence of alcohol and/or drugs causing injury. For this offense, the jury was instructed that the prosecution had to prove: (1) "the defendant drove a vehicle"; (2) "when he drove a vehicle, the defendant was under the influence of an alcoholic beverage, a drug, or under the combined influence of an alcoholic beverage and a drug"; (3) "while driving a vehicle under the influence, the defendant also committed an illegal act or neglected to perform a legal duty"; and (4) "the defendant's illegal act or failure to perform a legal duty caused bodily injury to another person."
Regarding the third element of driving under the influence while (a) committing an illegal act or (b) neglecting to perform a legal duty, the jury was instructed: "The People allege that the defendant committed the following illegal acts: [r]eckless driving or failure to perform a duty following an accident. [¶] . . . [¶] The People also allege that the defendant failed to perform the following legal duties while driving the vehicle: the duty to exercise ordinary care at all times and to maintain proper control of the vehicle."
Regarding the fourth element of causation between the illegal act/failure to perform a legal duty and bodily injury to another person, the jury was instructed pursuant to CALCRIM No. 2100 as follows: "An act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence."
"In a criminal case, a trial court has a duty to instruct the jury on ' " ' "the general principles of law relevant to the issues raised by the evidence." ' " ' [Citation.]" (People v. Estrada (1995) 11 Cal.4th 568, 574.) A trial court also has "the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place." (People v. Guiton (1993) 4 Cal.4th 1116, 1131.)
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' [Citations.] " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) "In addition, ' " 'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" [Citation.]' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 915.)
Regarding the driving under the influence instruction at issue, defendant acknowledges that "the trial court correctly instructed the jury that it could find [him] guilty if, while driving under the influence . . . , he committed an illegal act or violated a legal duty that caused bodily injury to another person." Contrary to defendant's contention, however, the court did not go on to "[tell] the jury . . . that that act could be reckless driving or leaving the scene of an accident." Rather, the court told the jury that "[t]he People allege that the defendant committed the following illegal acts: [r]eckless driving or failure to perform a duty following an accident." (Italics added.) Although the jury was informed of the prosecution's allegation that defendant had committed various illegal acts, the jury still had to determine whether each element of the driving under the influence offense, for which defendant concedes the jury was "correctly" instructed, had been proven beyond a reasonable doubt by the prosecution.
Relevant here, the driving under the influence instruction informed the jury that, to find a defendant guilty of that offense, the prosecution had to prove the "defendant's illegal act or failure to perform a legal duty caused bodily injury to another person." (Italics added.) In contrast, for the hit and run offense, the jury was instructed that the prosecution had to prove the defendant was involved in an accident that "caused damage to someone else's property," and that the defendant "failed . . . to immediately stop at the scene of the accident" or failed "to immediately provide" identification to the owner of the damaged property. (Italics added.) In considering these instructions together, the jury would have necessarily understood that a hit and run causing property damage and arising out a defendant's failure to stop after the accident or to provide identification could not have, for purposes of the driving under the influence offense, "caused bodily injury."
We further observe that the prosecutor argued to the jury that the hit and run offense was based on defendant hitting the BMW in the parking lot and failing to immediately stop at the scene. When the prosecutor subsequently addressed the driving under the influence offense, the prosecutor quoted from the jury instruction, "The People allege that the defendant committed the following illegal acts: Reckless driving or failure to perform a duty following an accident." However, the prosecutor never argued that defendant's hitting of the BMW and leaving the scene was the predicate illegal act for the driving under the influence offense. Rather, the prosecutor argued to the jury that the element of committing an illegal act or failing to do a legal duty for the driving under the influence offense was established by evidence that defendant drove in a "reckless manner" and did not exercise "ordinary care." In particular, the prosecutor contended that defendant accelerated, leaving tire friction marks on the pavement, when the parking lot was crowded after the bar had closed. The prosecutor argued, "That's what caused the injuries" to Garrido and his son. The prosecutor also argued that defendant's "acceleration into" Garrido and his son was "what caused the injuries to them," which established the element that "[t]he defendant's illegal act or failure to perform a legal duty caused bodily injury to another person."
In sum, in considering the instructions as a whole, as well as the prosecutor's argument to the jury, we do not believe it is reasonably likely that the jury would have understood the driving under the influence instruction in the manner that defendant now contends. Rather, in considering the instructions as a whole and the prosecutor's argument, we conclude that the jury necessarily found defendant guilty of driving under the influence based on a valid theory of reckless driving or the failure to exercise ordinary care.
G. Failure to Instruct on Presumption Regarding Blood-Alcohol Level
Defendant contends that the trial court erred in refusing to give a special jury instruction that a blood-alcohol level below 0.05 percent gives rise to a presumption that the person was not under the influence of alcohol at the time of the alleged offense. (See Veh. Code, § 23610, subd. (a)(1).) The court below denied the request based on People v. Andersen (1994) 26 Cal.App.4th 1241 (Andersen), reasoning that it would be confusing to jurors to give the instruction regarding alcohol where it was alleged that defendant was intoxicated based on a combination of alcohol and drugs. The Attorney General contends that the trial court properly refused defendant's pinpoint instruction.
"The trial court has a duty to instruct the jury on all principles of law relevant to the issues raised by the evidence [citation] and a correlative duty to refrain from instructing on irrelevant and confusing principles of law [citation]." (Andersen, supra, 26 Cal.App.4th at p. 1250.)
The appellate court in Andersen addressed the same contention that defendant makes in this case. In Andersen, the evidence reflected that approximately two hours after the accident, the defendant had a blood-alcohol level of 0.022 and a methamphetamine level of 156 nanograms per milliliter. (Andersen, supra, 26 Cal.App.4th at pp. 1246-1247.) According to the prosecution's evidence, the defendant's maximum blood-alcohol level at the time of the collision would have been 0.062, whereas the defense presented evidence that the defendant's blood-alcohol level would have been no higher than 0.05 at the time of the collision but was most likely 0.01 based on the amount of alcohol and food he had consumed. (Id. at pp. 1247, 1248.)
In rejecting the defendant's contention that the jury should have been instructed that a blood-alcohol level of less than 0.05 percent gives rise to a rebuttable presumption that the defendant was not under the influence, the appellate court explained: "The prosecution's theory of the case was that defendant was driving under the combined influence of alcohol and drugs. Since it is the combination that is alleged to have made defendant intoxicated, the level of alcohol alone in his blood is irrelevant. In these circumstances, an instruction couched in the language of [former] Vehicle Code section 23155, subdivision (a)(1), would have been highly confusing to the jurors. Accordingly, it was not error for the court to fail to give such an instruction." (Andersen, supra, 26 Cal.App.4th at pp. 1250.)
Defendant acknowledges that "the prosecution's theory was that [he] was under the combined [influence] of alcohol and drugs," but he contends that Andersen is distinguishable. He argues that the evidence in his case reflected that the amounts of cocaine, methamphetamine, and alcohol in his system were so low that they could not have impaired his ability to drive even in combination.
We are not persuaded by defendant's argument. Expert witness Burry testified about the synergistic effect of cocaine and alcohol, including that the combined consumption of cocaine and alcohol would correlate to a higher expression of the traits for either substance. Burry also testified that, although a person who consumed alcohol and stimulants, such as cocaine and methamphetamine, would be more alert than a person who consumed only alcohol, the stimulants would not reverse the other impairing effects of alcohol, such as poor judgment, increased disinhibition, or decreased ability to perform divided-attention tasks. Officer Santiago's observations of defendant shortly after the incident were consistent with impairment, including his appearance and unsteady gait. Defendant also admitted to the officer that he has a bad reaction when he uses drugs, and that he ends up in the hospital when he uses cocaine. He also admitted that after he inhaled the substance in the bathroom at the bar, which he later acknowledged was cocaine, it "opened up [his] eyes really big." As we have explained, there was ample evidence to conclude that defendant was under the influence of alcohol and drugs at the time of the incident.
In view of the evidence before the jury, we do not believe that the levels of the substances here have any tendency to undermine the reasoning of Andersen or suggest that Andersen is not applicable here. On the contrary, given the different substances in defendant's system and given the evidence of the amounts and effects of the substances, individually and in combination, the primary issue for the jury was whether defendant was under the influence of his particular mixture of alcohol, methamphetamine, and cocaine. Defendant's proposed instruction focused on alcohol by itself and, in our view, would have been just as confusing here as under the facts in Andersen. We are also not persuaded by defendant's contention that his proposed instruction was capable of being modified to make it less confusing, given his acknowledgement that "the prosecution's theory was that [he] was under the combined [influence] of alcohol and drugs." Accordingly, we conclude that the trial court did not err by refusing to instruct the jury on the rebuttable presumption concerning a blood-alcohol level of less than 0.05 percent.
The judgment is affirmed.
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________