Opinion
A110849
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. JIMENA BARRETO, Defendant and Appellant.
Defendant was convicted following a jury trial of two counts of second degree murder (Pen. Code, § 187), leaving the scene of an accident that resulted in permanent serious physical injury or death (Veh. Code, § 20001, subds. (a), (b)(2)), driving under the influence and causing injury to more than one victim (Veh. Code, § 23153, subd. (a)), and driving with a suspended or revoked license (Veh. Code, §§ 14601.1). She was sentenced to an aggregate state prison term of 30 years to life for the two murder convictions, and concurrent terms for the remaining convictions. In this appeal she claims that the trial court gave an erroneous supplemental instruction on implied malice. We conclude that the challenged instruction did not result in prejudicial error, and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
In addition, defendant entered a no contest plea to another charge of possession of cocaine (count 7).
STATEMENT OF FACTS
Undisputed evidence was presented that on the evening of October 26, 2003, defendant drove her Mercedes over the concrete curb and onto the sidewalk of Camino Tassajara in Danville, where her car struck and killed two children, Troy and Alana Pack. The crucial contested issue in the case was defendants mental state when the accident occurred.
For the sake of clarity and convenience, we will refer to Troy and Alana Pack, and their mother Carmen Pack, by their first names; we will also refer to their friends who were present when the accident occurred, Hunter and Mckenna Doliber, by their first names. Troy and Alana were ages 10 and 7, respectively, when they were killed.
Just before the accident, Troy and Alana were accompanied by their mother Carmen, and two friends Mckenna and Hunter Doliber, as they proceeded on the sidewalk of Camino Tassajara near the intersection of Rassani Drive just before dark at around 7:00 p.m. Troy and Hunter were on their scooters; Alana rode her bicycle; Carmen and Mckenna were walking. Carmen testified that as the road curved she suddenly "looked back" and noticed car headlights pointing toward them, followed by a "loud noise." The car driven by defendant struck Hunter on the right foot, then hit Troy and caused him to roll over the windshield, then collided with Alana and threw her to the left. Troys scooter flew through the air after impact with the car and hit Carmen in the knees. Defendants car was traveling at a speed of between 35.53 and 43.37 miles per hour — which was within the legal speed limit — and did not brake or take any corrective action before the collision with the victims. The primary cause of the accident was an "unsafe turning movement" by defendant whereby she continued "going straight" over the curb as the street curved to the left. Both Troy and Alana died at the scene of the accident.
Witnesses testified that defendant stopped her car, a gold 1979 Mercedes, on the far side of the intersection and approached Carmen, who was screaming. Defendant asked "what had happened," and inquired if the children were dead. When defendant realized the victims were dead she repeatedly stated, "I dont want to go to jail." Defendant also mentioned that she had taken medication for her back. Defendant appeared to be unsteady on her feet, a bit disoriented, and frightened, but none of the witnesses at the scene smelled alcohol on her breath. Carmen took defendants keys from the ignition of the Mercedes so she could not drive away. Witnesses at the scene testified that defendant did not attempt to aid the victims, and seemed only worried "about herself."
When police officers and emergency vehicles arrived, defendant crossed the street, ran up a hillside into the bushes, and fled from the accident scene. She ran in front of a van "that was at a stop sign" nearby, and told the driver, Patricia Casci, that "there had been an accident." Defendant then jumped into the passenger seat of the van, and requested to use Cascis cell phone. She appeared to be irrational, hyperventilating, hysterical, and in shock. Without using the phone, defendant stated that she "was in distress" and asked Casci to take her to "a shopping center or somewhere." Defendant "became more hysterical" when she noticed ambulances and a medevac helicopter overhead. She told Casci that "the driver of the car that she was in had a head injury or something." Casci advised defendant that she needed to return to the accident scene, and made a U-turn, whereupon defendant became "very agitated" as they approached the ambulances. Defendant said, "Nobody can see me. I cant allow anybody to see me." As traffic slowed and a police officer approached the van with a flashlight, defendant left the vehicle and fled from the accident scene again. Casci testified that based upon her observations she suspected defendant was under the influence, although she did not smell alcohol on defendants breath or clothes.
Defendant was next observed at a nearby AM/PM Mini-Mart on Camino Tassajara when she approached the driver of a Plymouth Breeze, stated that "shed been in an accident" and her "husband had stayed with the car," and complained she was "having an asthma attack." Defendant asked for a ride home. The driver "noticed an alcohol odor" as defendant entered the car, but her speech was not slurred. The driver "didnt feel good abut the situation," but drove defendant to Walnut Creek and dropped her off at the Andronicos Market — which was about a mile from defendants residence — at about 7:45 p.m.
Defendant was then taken by taxi to an apartment complex on Flora Avenue in Walnut Creek. As the taxi approached the driveway, a sheriffs patrol vehicle was leaving, so defendant asked the driver to keep driving "down to the next road and take a right," then "go to Danville." Defendant directed the driver to Camino Tassajara near Rassani Drive in Danville, where they encountered "an awful lot of police [t]here." Defendant asked the driver to "turn around" and proceed to the BART station in Walnut Creek, where she left the taxi. Defendant was "fidgety and sort of anxious," but she appeared to speak and walk normally, and the driver "didnt smell any alcohol on her." Defendant left her cell phone on the back seat of the taxi. The taxi driver subsequently took the cell phone to the Danville Police Department.
Defendant took a BART train to San Francisco, then arrived at her friend Ximena Marins house in Pacific Heights at about 9:30 p.m. Defendant was desperate, "screaming" and "out of control." She said to Marin: "I messed up my life. What am I gonna do?" At that moment, the San Francisco police called Marin, who divulged that defendant was with her in a car. Before Marin could take defendant to the police, however, she exclaimed, "I have to get out," and left the car. Defendant mentioned to Marin that she "was taking medicine," but was not staggering when she walked and did not smell of alcohol.
As the Danville Police Department continued to pursue defendant, she took a Greyhound bus to Coalinga. Then in the course of the next two days defendant placed calls to a friend at her apartment complex in Walnut Creek seeking help. Defendant asked her friend to enter her apartment to gather her cash and jewelry so "someone could come and pick it up for her." Late in the afternoon on October 28th, defendant called the same friend to relate that she wanted to contact "some former employers" to "give herself up to them." In the telephone calls to her friend defendant denied that she had been drinking the day of the accident.
Defendant also asked her friend to "take cocaine out of the kitchen and flush it down the toilet."
Defendant was apprehended just after 5:00 p.m. on October 28th in San Jose in response to an all points bulletin. Later that evening she was interviewed by Danville police officers. Defendant acknowledged her "drinking problem" and her "record" of prior drunk driving. She stated to the officers, "I do drink all the time," but denied that she had "been drinking" before the accident. Defendant admitted that she had taken prescription Vicodin and a "muscle relaxer" intermittently for the past week following a knee injury that resulted from a fall. On the day of the accident she took "a few" of each of the medications in the morning, and again in the afternoon "before and after" her nap. Defendant claimed she "was fine," however, when she left her apartment in the car at around 6:35 p.m. to report for work in Danville as a nanny that night. She said she "was just driving, everything was fine," then suddenly she "saw the kids" and was "off the road." When defendant saw someone giving "the little boy" CPR she "just got scared and left." Defendant stated she "didnt know they were dead" when she left the scene. Defendant also told the officers that her Mercedes "has problems" with swerving to the left and shaking, but an examination and "road test" of the car revealed that it was "fully functional and intact," without any preexisting mechanical "deficiencies found." The brakes, steering, and suspension of the vehicle all "worked fine."
The prosecution offered evidence of defendants alcohol abuse and impaired driving, both in the past and immediately before the accident. Defendant suffered a conviction in Florida for driving under the influence on October 21, 1987, and was placed on probation with a condition that required completion of an alcohol-education program. She was arrested for driving under the influence on July 24, 2000 after both of her breath tests revealed blood-alcohol levels of 0.12. She was granted probation for a conviction of driving under the influence, with restriction of her driving privilege and a requirement that she complete a driving-under-the-influence program. The record also includes testimony that defendant participated in the Level-I Future Solutions Driving Under the Influence Program between October 29, 2000 and January 31, 2001, and received a certificate of completion of the program in March of 2001. On January 5, 2001, defendant was again detained and arrested for driving under the influence on Flora Avenue in Walnut Creek, after she failed a field sobriety test; when tested, her blood-alcohol levels were 0.09 and 0.10. She subsequently entered a plea of no contest to a misdemeanor violation of Vehicle Code section 23152, and was granted probation upon conditions, among others, of restriction of driving privilege for 90 days and completion of another drinking drivers program. Defendants drivers license was suspended when the accident occurred.
The certificate of completion was issued by the California Department of Motor Vehicles.
Testimony was adduced from witnesses who employed defendant as a nanny or child nurse between 2000 and 2003, and either fired her for drinking or noticed that she exhibited symptoms of alcohol ingestion while she was working. One of defendants former employers testified that in January of 2003 defendant took two of her Vicodin pills without permission.
Testimony was also presented that defendant had been regularly consuming alcohol to excess in the weeks before the accident. Two friends who lived in defendants apartment complex on Flora Avenue in Walnut Creek testified that defendant became "more distressed," and noticeably began drinking more frequently and immoderately in the fall of 2003, after her husband left her. Defendants friends frequently saw her intoxicated around the pool or in the parking lot of the apartment complex. Defendant told one of her friends that "she was afraid she was going to lose her job because she was really drinking heavily" since she separated from her husband.
On an afternoon during the first week of October, Kathleen McNamara observed defendant at a bar in San Francisco "obviously intoxicated" and behaving boisterously. Defendant was so impaired that McNamara warned her not to drive. Defendant replied that "she always drove like this and she had no problems."
On October 24, 2003, defendant appeared at the 7-Eleven store in Walnut Creek to purchase two large Smirnoff Ice drinks, which according to the clerk was her "regular purchase." Defendant already "seemed to be intoxicated" when she came into the store.
In the weeks before the accident, defendant also took two prescription drugs: the narcotic analgesic Vicodin and the muscle relaxant Flexeril. Defendants physician and pharmacist testified that they instructed her not to exceed the prescribed dosage, and warned her that the side effects of drowsiness and dizziness caused by the sedating medications were enhanced by alcohol. Defendant was further warned not to drive or operate machinery while under the influence of the medications.
The afternoon of the accident, defendant was seen in a lounge chair by the pool in her apartment complex in Walnut Creek with a half-full "small bottle of Smirnoff" by her side. Then, about 5:00 or 6:00 p.m., defendants neighbor observed that she seemed to be "medicated or under the influence of alcohol" as she walked up a stairwell of the apartment complex. She was "slurring her words," "staggering," and "lazily walking" as she had "a hard time making it up the stairs."
Between 6:15 and 6:30 p.m. the same day, Teresa and Arnold Cunha watched defendant as she drove along Camino Tassajara in Danville in her Mercedes. Her car was "slowly drifting" from one lane of the road to the other "kind of erratically." Teresa and Arnold were "very concerned with her driving pattern," so they decided to "keep an eye out" on the Mercedes from a distance behind it. They thought the driver of the Mercedes was under the influence. At two stop lights, defendant nearly hit cars stopped in front of her before she abruptly applied the brakes. As defendant approached the intersection of Camino Tassajara and Rassani Drive, the road turned to the left but the Mercedes continued straight ahead "as if nobody was driving it." The car struck the pedestrians on the sidewalk without any braking or turning.
The defense presented testimony from former employers who praised defendants work as a nanny and did not observe that she appeared intoxicated while on the job. A forensic toxicologist testified for the defense that upon review of defendants prescription records she "was not abusing her prescriptions" during the two years before the accident. The forensic toxicologist also offered his opinion that defendant "didnt actually have any alcohol within her system" at the time of the accident. He suggested that defendants behavior before and after the accident was consistent with her ingestion of Vicodin and Flexeril.
DISCUSSION
Defendant argues that the trial court erred by giving a supplemental instruction on drunk driving and implied malice, as requested by the prosecution, which advised the jury: "The mental state of implied malice may be measured over a period of time. Drinking and/or taking prescription drugs to the point of intoxication in anticipation of driving, reasonably may be held to exhibit a conscious disregard for the safety of others." (Italics added.) The challenged instruction was given in conjunction with the standard instructions on second degree murder and implied malice (CALJIC Nos. 8.11 and 8.31) both of which defined implied malice as an act "deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (Italics added.) Defendant objects to two facets of the supplemental implied malice instruction: First, the reference to measurement of implied malice "over a period of time," which she asserts is contrary to the fundamental rule that the requisite criminal intent and act must exist concurrently; and second, the statement that "implied malice involves a disregard for the safety of others," in place of the proper definition "that implied malice requires a disregard for human life." She claims that the errors in instruction "relieved the state of its burden of proof on the element of intent," and thereby constituted "federal constitutional error."
I. No Forfeiture or Invited Error.
As a threshold matter we confront the Attorney Generals contention that defendants claim of instructional error was forfeited or invited by her failure to object at trial. When asked by the trial court if the supplemental implied malice instruction proposed by the prosecution was objectionable, defense counsel expressly replied, "no." The Attorney General submits that "by agreeing to the instruction" defendant "either forfeited or invited error."
"Normally, a defendant forfeits the right to appeal alleged errors ` "by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. [Citation.] The cases equate `substantial rights with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]" [Citation.] [Citation.]" (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427, italics omitted; see alsoPeople v. Prieto (2003) 30 Cal.4th 226, 247; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) "Generally, whether or not an appellate court should excuse the lack of a trial court objection `is entrusted to its discretion. [Citation.]" (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) If defendants objections to the supplemental implied malice instruction are correct, her substantial rights would have been affected. We therefore find no invited error or forfeiture of the issue, and exercise our discretion to proceed to the substance of defendants objections to the instruction. (See People v. Guerra (2006) 37 Cal.4th 1067, 1134; People v. Gray (2005) 37 Cal.4th 168, 235.)
Section 1259 provides in pertinent part: "The appellate court may . . . review any instruction given . . . , even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."
"The proper test for judging the adequacy of instructions is to decide whether the trial court `fully and fairly instructed on the applicable law . . . . [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "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 defendants rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) "A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law." (People v. Andrade, supra, at p. 585.) "When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.)"
`"`[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." [Citation.]" (People v. Estep (1996) 42 Cal.App.4th 733, 738-739; see also People v. Pinholster (1992) 1 Cal.4th 865, 951; People v. Crandell (1988) 46 Cal.3d 833, 874.) "In order to prevail on a claim that the jury instructions are misleading, the claimant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. [Citation.] `"`The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." [Citation.]" (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) "The meaning of instructions is no longer determined under a strict test of whether a `reasonable juror could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a `reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez, supra, 89 Cal.App.4th 266, 276, italics omitted; see also Estelle v. McGuire (1991) 502 U.S. 62, 70-75; People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Andrade, supra, 85 Cal.App.4th 579, 585.) Further, "`Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citation.]" (People v. Martin, supra, 78 Cal.App.4th 1107, 1112.)
II. The Instruction that Implied Malice may be Measured over a Period of Time .
We first examine defendants assertion of error associated with the statement in the supplemental instruction that the "mental state of implied malice may be measured over a period of time." Defendant complains that "the only relevant state of mind is the state of mind at the time of the accident," and the instruction therefore "undercut the requirement that implied malice be present at the time of the fatal act." She maintains: "It is only if implied malice exists at the time of the act causing death that there can be the union of act and intent that is required for murder."
We have no quarrel with the basic premise articulated by defendant that an invariable element of murder, as with every crime or public offense, is a union or joint operation of act and intent, or criminal negligence, unless it is excluded expressly or by necessary implication. (§ 20; In re Jorge M. (2000) 23 Cal.4th 866, 879; People v. Alvarez (1996) 14 Cal.4th 155, 220; People v. Hernandez (1964) 61 Cal.2d 529, 532-533; People v. Heath (2005) 134 Cal.App.4th 490, 495.) The defendants wrongful intent and the physical act must coincide. (See People v. Green (1980) 27 Cal.3d 1, 54; People v. Thompson (2000) 79 Cal.App.4th 40, 52; People v. Sekona (1994) 27 Cal.App.4th 443, 456.)
However, we find nothing in the supplemental implied malice instruction that contravened or "undercut" the fundamental requirement of concurrence of act and intent. The instruction did not in any manner inform the jury that the necessary mental state of implied malice may somehow exist autonomously or without the correlation of a deliberately performed unlawful act — in this case, of driving in an impaired state over a curb and onto a sidewalk. Rather, the instruction properly advised the jury that implied malice may not be — and in vehicular homicide cases frequently is not — a momentary state of mind. Cases have observed that the state of implied malice may indeed exist for a protracted period of time while the defendant consumes alcohol and then engages in a course or pattern of dangerous driving while impaired. (See People v. Watson (1981) 30 Cal.3d 290, 293, 300; People v. Talamantes (1992) 11 Cal.App.4th 968, 972-973; People v. David (1991) 230 Cal.App.3d 1109, 1115-1116; People v. Murray (1990) 225 Cal.App.3d 734, 747; People v. McCarnes (1986) 179 Cal.App.3d 525, 534-535; People v. Albright (1985) 173 Cal.App.3d 883, 886-887; People v. Olivas (1985) 172 Cal.App.3d 984, 988-989.) "[T]he criminal act underlying vehicular murder is not the traffic violation which may precede an accident, but driving under the influence with conscious disregard for life." (People v. Brogna (1988) 202 Cal.App.3d 700, 708.) The trial courts admonishment to the jury that implied malice may be measured over a period of time was therefore not an incorrect statement of the law.
Moreover, the jury was given the standard instruction on the concurrence of act and general criminal intent (CALJIC No. 3.30), and was specifically instructed (CALJIC No. 3.31.5) as to the second degree murder charge that "there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed." Finally, the murder instruction also substantially covered the requirement of concurrence of act and intent by advising the jury that murder is the unlawful killing of a human being "when the killing resulted from an intentional act" dangerous to human life committed "with express or implied malice." (See People v. Alvarez, supra, 14 Cal.4th 155, 220; People v. Rodrigues (1994) 8 Cal.4th 1060, 1143; People v. Hayden (1994) 22 Cal.App.4th 48, 58.) Thus, the jury knew that to convict defendant of second degree murder the mental state of implied malice must have existed when the accident and unlawful killing occurred. We find no error in the admonition that implied malice may be measured over a period of time.
The CALJIC No. 3.30 instruction related only to counts 3 through 6, and 8, along with some enhancements.
III. The Instruction that Intoxicated Driving May Exhibit a Conscious Disregard for the Safety of Others .
We turn to defendants contention that the trial court erred by instructing the jury: "Drinking and/or taking prescription drugs to the point of intoxication in anticipation of driving, reasonably may be held to exhibit a conscious disregard for the safety of others." Defendants complaint is with the trial courts use of the language "disregard for the safety of others," instead of "disregard for human life." (Italics added.) Defendant argues that an act "dangerous to life" must be committed "before implied malice may be found," and the requirement "cannot be satisfied by a showing of conscious disregard for safety."
A review of the law of malice supports defendants claim that implied malice requires commission of an act dangerous to human life. "Malice may be express or implied. Malice is express `when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. (§ 188.) It is implied `when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (Ibid.) More specifically, `malice is implied "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." [Citation.] [Citation.]" (People v. Robertson (2004) 34 Cal.4th 156, 164, italics added; see also People v. Whitfield (1994) 7 Cal.4th 437, 450.) "`Murder does not require the intent to kill. Implied malice — a conscious disregard for life — suffices. . . . [C.]" (People v. Montes (2003) 112 Cal.App.4th 1543, 1550.) "`[I]mplied malice has both a physical and a mental component, the physical component being the performance "`of an act, the natural consequences of which are dangerous to life, "and the mental component being the requirement that the defendant "`knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life." [Citation.]" (People v. Taylor (2004) 32 Cal.4th 863, 868, italics added.) "When a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice towards those he ends up killing." (Ibid.)
Consistently, "In cases of vehicular homicide, implied malice has been found to exist `when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citation.] It has also been found to exist `when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]" (People v. Garcia (1995) 41 Cal.App.4th 1832, 1848-1849; see also People v. Talamantes, supra, 11 Cal.App.4th 968, 972.) These two definitions have repeatedly been held to "articulate[] one and the same standard." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104; see also People v. Dellinger (1989) 49 Cal.3d 1212, 1219.)
Implied malice also requires proof that the defendant knew that his conduct endangered the life of another and acted with a conscious disregard for life, i.e., that he actually appreciated the risk posed by his dangerous conduct. (People v. Hansen (1994) 9 Cal.4th 300, 308; People v. Autry (1995) 37 Cal.App.4th 351, 358; People v. Jarmon (1992) 2 Cal.App.4th 1345, 1350.) "[T]he essential distinction between second degree murder based on implied malice and involuntary manslaughter is the subjective versus objective criteria to evaluate the defendants state of mind — i.e. if the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice." (People v. Cleaves (1991) 229 Cal.App.3d 367, 378; see also People v. Evers (1992) 10 Cal.App.4th 588, 596.)
We also accept defendants claim that the concept of implied malice recognizes a crucial distinction between acts which are dangerous to life and those which are merely dangerous to safety. When directly presented with the question "whether `willful or wanton disregard for the safety of persons is the equivalent of `conscious disregard for human life, "the court in People v. Calderon (2005) 129 Cal.App.4th 1301, 1308, concluded that "the two are not the same." (Ibid.) The court explained: "In our view, there is a subtle but . . . inescapable . . . difference between disregard for the safety of persons and disregard for human life. An act is dangerous to life, for purposes of implied malice, when there is a high probability it will result in death. [Citations.] Such an act is required before implied malice may be found. [Citations.] Yet an act may endanger a persons safety without carrying such a risk. Moreover, a disregard for safety may encompass a disregard for life, but it need not do so." (Id., at p. 1310, fn. omitted; see also People v. Lewis (2006) 139 Cal.App.4th 874, 891-892.)
In Calderon, the defendant was the driver of a stolen vehicle who failed to yield to a deputy sheriffs sirens and a chase ensued. (People v. Calderon, supra, 129 Cal.App.4th 1301, 1305.) While attempting to evade the deputy, Calderon crossed into an oncoming traffic lane and hit another vehicle, killing the driver of the other vehicle. (Id. at pp. 1305-1306.) In addition to giving an implied malice murder instruction to the jury, the court instructed: "`The unlawful killing of a human being whether intentional or unintentional or accidental which occurs in the commission of the crime of a violation of [section 2800.2, subdivision (a)], felony fleeing of peace officer in willful or wanton disregard for the safety of persons, is murder of the second degree when the perpetrator had the specific intent to commit the crime. And that specific intent must be proved beyond a reasonable doubt. " (Id. at p. 1308, italics added.) Calderon was convicted of murder. On appeal, the People conceded that the felony-murder instruction was error, but argued that if the jurors based their conviction on the felony-murder instructions, they necessarily also found implied malice for purposes of murder. (Id., at pp. 1307-1308.)
Where defendants challenge to the supplemental instruction on implied malice fails is in her assertion that the instruction effectively informed the "jury that a conscious disregard for safety is the same as implied malice." The instruction did not equate implied malice with conscious disregard for the safety of others. The essence of the instruction is that intoxicated driving may exhibit a conscious disregard for the safety of others. The instruction does not expressly state or even direct the jury to make the further inference that conscious disregard for the safety of others constitutes implied malice. To the contrary, the supplemental instruction is both directly preceded and closely followed by the standard instructions on murder and malice that emphasize to the jury in definitive, unambiguous terms the rule that implied malice may only be found if the defendant deliberately committed an act dangerous to human life with knowledge of the danger and conscious disregard for human life. The instruction thus may even have been interpreted by the jury — to defendants advantage — to mean that evidence of intoxicated driving may prove conscious disregard for safety, but does not of itself establish the conscious disregard for life required for a finding of implied malice.
The instruction does not even advise the jury that intoxicated driving necessarily exhibits conscious disregard for the safety of others.
We recognize that the supplemental instruction may have engendered a bit of confusion on the part of the jury through use of the inapposite "conscious disregard for the safety of others" language associated with intoxicated driving. But when considered along with the remaining instructions on murder and malice we do not find any error. Further, the argument of both the prosecutor and defense counsel repeatedly and consistently reinforced for the jury the proper standard of implied malice based upon driving under the influence: an act "deliberately performed with knowledge of the danger to and with conscious disregard for human life." Disregard for safety was never equated with implied malice.
We repeat the suggestion periodically given to the trial courts that modification of the standard jury instructions may be fraught with the risk of confusion or error, and should generally be avoided. (See People v. Freeman (1994) 8 Cal.4th 450, 504.)
We think the jury properly interpreted the supplemental instruction, when examined in the context it was given and in light of the record in its entirety, to mean that intoxicated driving may exhibit conscious disregard for safety, but implied malice requires additional proof of a dangerous act committed with conscious disregard for life. We therefore conclude that no prejudicial instructional error occurred.
Accordingly, the judgment is affirmed.
We note that the abstract of judgment contains two typographical errors. Count 5 refers to "SECTION No. 200001ab2." It should refer to Vehicle Code section 20001ab2. Count 7 indicates the defendant was convicted of Health and Safety Code section 11350(a) by jury verdict, but her conviction was by plea. The trial court, if it has not already done so, is directed to issue a corrected abstract of judgment and forward the corrected abstract to the Department of Corrections.
We concur:
MARCHIANO, P. J.
STEIN, J.