Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07901577. Edward Sarkisian, Jr., Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
On March 28, 2007, an information was filed in Fresno County Superior Court, charging appellant Esteven Alvarez with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 1), driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a); count 2), gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1); count 3), driving with a suspended license, with prior convictions (Veh. Code, § 14601.2, subd. (a); count 4), and unlawful vehicle operation (id., § 23247, subd. (e); count 5). He subsequently pled guilty to counts 4 and 5, both misdemeanors; counts 1 and 2 were dismissed, upon motion of the prosecutor, for insufficient evidence; and jury trial proceeded on count 3. Following his conviction thereon, appellant was sentenced to six years in prison and ordered to pay various fees and fines, and his driving privilege was revoked (Veh. Code, § 13351). He now appeals, raising claims of evidentiary and instructional error. In addition, respondent contends the case must be remanded for a determination of victim restitution. For the reasons that follow, we will reject appellant’s contentions, but agree with respondent.
FACTS
I
PROSECUTION EVIDENCE
At approximately 9:00 a.m. on February 24, 2007, Nicholas Fish was driving northbound on Clovis Avenue. Weather conditions were clear, and the signal light at the intersection of Ashlan and Clovis was red for traffic on Clovis. As Fish moved into the left-turn lane in order to turn onto Ashlan, he saw a black Grand Am approaching from the rear at a high rate of speed. It passed him at 75 to 80 miles per hour and collided with a line of cars stopped for the red light. Nothing suggested the Grand Am’s brakes had been applied. Marlon Santoya, who was driving 45 miles per hour when the Grand Am passed him somewhere between Dakota and Ashlan, estimated the Grand Am was traveling 70 to 80 miles per hour. He could see the rear of the car as it approached the intersection; he did not see brake lights or hear tires screeching and, as far as he could tell, the car did not slow down at all prior to impact. There were no skid marks. When the Grand Am passed Santoya, the light on Clovis was already red and the cars at the intersection were stopped.
The posted speed limit on Clovis Avenue at that location is 50 miles per hour.
Fish described the impact as “unbelievable.” The collision pushed a red Toyota Tercel, driven by Donald Washburn, underneath a pickup truck, which contained Thomas Radley and his seven-year-old son. Radley’s truck was pushed into a minivan, which contained Jessica Perez, her husband, and their two young daughters. The minivan in turn struck the first vehicle in line, a Hyundai driven by Karen Ertman. Washburn, who was pinned in the crushed Tercel, died almost immediately from blunt force injuries of the head and neck. Radley, Perez, and Ertman suffered injuries that still caused them pain as of the time of trial, and their vehicles were damaged.
Perez described the collision as sounding like an explosion. Her first thought was that a plane had crashed.
The Pontiac Grand Am, which sustained front-end damage, ended up about 10 to 15 feet from the Tercel, and its airbags deployed. Fish saw appellant get out of the passenger side and use his cell phone, but appellant did not check on anyone involved in the collision. Santoya asked if he fell asleep or had been drinking, but appellant, who seemed dazed or confused but unhurt, never answered. When Clovis Police Officer Santillan, the first officer to arrive on scene, contacted appellant, the latter was sitting near the driver’s door of the Grand Am. Appellant appeared to be somewhat disoriented, and his speech was slow and almost slurred. Moments later, emergency and CHP personnel arrived. When Paramedic Mark Zamora assessed appellant, the latter was alert and oriented.
Subsequent inspection of the car revealed that the front brakes worked, but the rear ones did not. This would have increased the vehicle’s stopping distance.
CHP Officer Turner arrived on the scene at approximately 9:20 a.m., and contacted appellant a short time later. Appellant admitted driving the black Pontiac. He seemed detached from what was going on, although he promptly answered Turner’s questions. The first time Turner asked what happened, appellant said he did not know. The next time, he again said he did not know, but surmised that somebody may have hit him, perhaps on the rear of his car. Appellant did not seem concerned about the collision. His detachment and red, watery eyes led Turner to believe he might be impaired and unable to drive safely.
Turner spoke with some of the other drivers involved, as well as several law enforcement officers who were arriving, then recontacted appellant. Turner again asked what happened in the collision. Appellant stated he was driving the Pontiac northbound on Clovis at about the speed limit, when the vehicle in front of him moved left, into the left-turn lane. Appellant then slowed down. When Turner asked why, appellant said he thought maybe the signal light was red and traffic was stopped in front of him. Then he was hit. When Turner asked appellant for his license, registration, and insurance, appellant provided an identification card and said his driver’s license was suspended for a DUI. Turner confirmed the license’s status.
Driving under the influence of drugs or alcohol.
In response to a series of pre-field sobriety test questions, appellant told Turner that he had never been diagnosed as epileptic; had had several beers between 8:00 and 9:30 the night before; and was taking Phenytek to control seizures, Aciphex to control acid reflux, and Zyrtec for allergies. Appellant said he had last taken those pills approximately 22 hours earlier. He was very definite in stating he had not had a seizure at the time of the collision. When Turner asked how he knew, appellant related that he could tell when a seizure was about to happen, and that he would have stopped driving if that had been the case.
Turner then administered a series of field sobriety tests, during the course of which he checked appellant’s pulse. A normal pulse rate is between 60 and 90 beats per minute. Appellant’s pulse rate was 134 beats per minute. Although appellant displayed no horizontal gaze nystagmus, which could indicate the presence of depressants, PCP, or inhalants, his poor performance on various tests indicated he possibly was under the influence. Despite a preliminary alcohol screening test that showed no alcohol was present, Turner placed appellant under arrest for driving under the influence.
Appellant was taken to the Fresno area CHP office, where Turner performed a drug recognition evaluation. As part of this process, he took appellant’s pulse three times. The pulse rate was elevated each time, and appellant’s blood pressure was also elevated. Appellant’s pupils were dilated and his coordination was poor. Turner formed the opinion that he was under the influence of a stimulant. When Turner asked what medications or drugs appellant had used, aside from the ones appellant had already stated, appellant said he had smoked marijuana about a week earlier. He also said it had been a long time since he had had any seizures. Turner was with appellant for a total of approximately three hours on the date of the collision. Turner did not recall him ever inquiring about Washburn’s injuries.
A urine sample taken shortly after noon showed the presence of inactive marijuana metabolite. The test was negative for methamphetamine and amphetamine, but pseudoephedrine, which could have come from allergy medication, was present. Marijuana metabolite may be detected in urine anywhere from two weeks to 30 days after use.
After Turner completed his evaluation, CHP Officer Fuentes transported appellant to the hospital so that he could be medically cleared for booking. Although appellant did not have visible injuries, he complained of pain in one foot. At the hospital, he was treated for an abrasion to his neck and a nondisplaced fracture of the right ankle. There was no evidence of head trauma; he was alert and oriented, and his pupils were normal and reactive. However, appellant reported to Dr. Campagne, the treating physician, that he had lost consciousness for an unknown length of time.
While in the emergency room, appellant had a generalized tonic-clonic (grand mal) seizure that lasted about two minutes and stopped after Ativan was administered. Afterward, appellant was somewhat confused and was unaware he had just had a seizure. He told Dr. Campagne, however, that he had a history of seizures dating back to his childhood, and that he usually had a seizure every couple of months. As he was taking Dilantin (also known as Phenytek), the level was checked to see whether it was in the therapeutic range. The therapeutic range – where the level needs to be in order for the drug to do any good in helping to prevent seizures – is between 10 and 20 micrograms per milliliter. Appellant’s level, as of approximately 3:30 p.m., was 5.9. Appellant was given additional Dilantin by mouth. A C.T. scan of appellant’s brain was normal, and revealed no bleeding in the brain.
Dilantin needs to be taken on a daily basis, either three times a day or a larger dose one time a day.
A person experiencing a tonic-clonic seizure loses consciousness during the event. A period of confusion, known as a post-ictal state, and the inability to remember having a seizure are both common in individuals who have just experienced a seizure. Someone coming out of a seizure can feel tired or exhausted. He or she may be very uncoordinated, and speech may be slurred. The person is “not really present” because of the confusion. Everyone who has seizures has his or her own unique post-ictal state, and the length varies from individual to individual. The confusion may be over in seconds, or may last for an hour or more. Some people are able to tell when a seizure is about to occur.
After the seizure, Dr. Campagne instructed appellant not to drive. She was also required by law to, and did, submit a confidential morbidity report (CMR) to the Department of Motor Vehicles (DMV). She was unable to form an opinion concerning whether appellant had had a seizure at the time of the accident, as he did not state whether he passed out before or after.
After the doctor left, Fuentes remained with appellant. When Fuentes asked whether he had ever been involved in an accident before, appellant said yes, and that he believed he had had a seizure during that incident, which occurred some seven or eight years earlier. When Fuentes asked how he knew, appellant said the investigating officer had told him.
Evidence was presented with respect to appellant’s prior medical and driving history. Records maintained by DMV’s driver safety office showed that appellant underwent reexamination in January 1996, following submission of a CMR relating that appellant had suffered a tonic-clonic seizure. Appellant related to Dr. Soghomonian, who performed the DMV evaluation, that he had seizures when he smoked marijuana. As a result, Dr. Soghomonian told appellant not to smoke marijuana and recommended that he take Dilantin, with periodic blood tests to ensure the medication level stayed in the therapeutic range. The doctor’s summary stated that appellant, who was then 17 years old, had a history of seizure since 1993, and that the seizures were controlled with Dilantin. Dr. Soghomonian concluded that, if appellant stopped using cannabis and was compliant with his medication, he would be seizure-free.
As a result of the reexamination, DMV decided merely to monitor appellant, and his driver’s license was not suspended at that time. Beginning about a year and a half later, however, DMV received additional CMR’s advising of seizure activity, such that DMV required more information concerning whether appellant no longer should be allowed to drive. This triggered further reexamination notices to appellant. Appellant’s driver’s license was suspended effected May 5, 1998, for failure to comply with a reexamination request.
Whether someone suffering from seizures is allowed to drive is determined by DMV on a case-by-case basis.
On June 13, 1998, Sharon Pugh, a registered nurse, and her family were traveling on Highway 99, north of Fresno, when a van in the fast lane veered across the three northbound lanes, over the dirt shoulder on the right, through a fence alongside the freeway, back onto the freeway and across the traffic lanes, and into the oleanders in the center divider, where it came to a stop. When Pugh and her husband went to help, bystanders were already moving appellant, the driver, out of the van. Appellant appeared unresponsive. Once out of the vehicle, he had a seizure. This was followed by a post-ictal phase in which he was unable to answer Pugh’s questions. When CHP Officer Epperson arrived, appellant was able to provide his name and driver’s license, but was too incoherent to give a statement about what had happened. Epperson checked the status of appellant’s driver’s license and determined it was suspended at the time because appellant was epileptic. The license suspension had gone into effect on May 5, 1998, and appellant was personally served with notice on May 26. As a result, Epperson recommended that a complaint be filed against appellant for driving while his license was suspended and for possession of a suspended driver’s license.
Appellant’s driver’s license was again suspended effective February 8, 1999, for failure to appear or complete reexamination at DMV’s request. A third suspension, effective August 20, 2001, was an administrative per se suspension based on the reporting, by law enforcement, of a DUI on July 21, 2001. Appellant completed a required DUI program and this suspension terminated on December 20, 2004.
Reexamination suspensions are open-ended. The Vehicle Code allows DMV to suspend the driving privilege indefinitely, until the reexamination process [Fn. contd.] is completed. Sometimes a medical evaluation report will suffice for completion, but other times more is required, such as a behind-the-wheel drive test.
On November 19, 2003, Clovis Police Officer Gens investigated a collision on Willow, just south of Shaw, in Clovis. A Ford van driven by appellant had struck a power pole on the west curb of Willow, which would have been on the right side of a vehicle traveling southbound. There was major damage to the left front of the vehicle. Appellant told Gens that he had been traveling southbound on Willow in the lane closest to the curb, at approximately 25 to 30 miles per hour, when a driver in the other lane cut him off and caused him to veer to the right and have a collision. Gens found no witnesses to the collision or physical evidence to suggest the involvement of another vehicle. Additionally, given appellant’s reported speed and the fact the lane he had been in was extra-wide, appellant should have been able to avoid a collision if he had been cut off. Accordingly, Gens concluded it was a solo vehicle traffic collision. Appellant informed Gens that his driver’s license was suspended at the time due to a seizure disorder, but denied that he had had a seizure or lost consciousness prior to the collision. Appellant did not seem to be confused.
DMV records showed appellant had suffered three convictions for driving on a suspended license. He had six CMR’s on file. All bore different dates and were from different sources. DMV received no such notices from November 23, 1998, to July 22, 2006, when Clovis Community Hospital reported that appellant had had a seizure on that date. On October 13, 2006, Saint Agnes Medical Center made a similar report. As of February 24, 2007, appellant’s license was not suspended for a DUI, but was suspended for failure to comply with a reexamination requested by DMV’s driver safety branch. In light of the number of CMR’s that had been submitted on appellant, his license could not be renewed until he obtained clearance, from a driver safety office, of his medical suspensions. Thus, at the time of the collision, appellant could not legally drive in California.
II
DEFENSE EVIDENCE
According to Dr. Alan Barbour, a forensic toxicologist, the level of inactive marijuana metabolite found in appellant’s urine sample was consistent with ingestion of marijuana anywhere from a day to a week earlier. Since THC, the principal active compound in marijuana, only stays in the blood for several hours, it presumably would have been completely gone at the time of the collision and, hence, of no effect.
Dr. Barbour was aware of one study, conducted in 1990, about the effect of marijuana in addition to Dilantin on seizure control. The marijuana seemed to decrease seizure activity in those whose seizures were not completely controlled by Dilantin. In a study done on rats, the conclusion was that marijuana may help in some cases and not in others. Dr. Barbour was also aware of anecdotal reports involving the effects on one or two people, but did not believe there was enough information to form an opinion one way or the other. Since not all seizures are produced in the same way or caused by one particular kind or location of brain dysfunction, different medicines have different effects on different people.
Harold Haupt, who, prior to his retirement, was an accident reconstructionist for the CHP, read the CHP collision report with respect to, and viewed the scene of, the collision at issue in this case. He also viewed the Grand Am and the Tercel that were involved, and obtained various weights and measurements. He then performed a momentum analysis and concluded that the impact velocity of the Grand Am was in the range of 30.1 to 45.2 miles per hour. If the Grand Am’s rear brakes were inoperable, the vehicle’s braking efficiency would be 60 percent. At 100 percent braking efficiency, the stopping distance at 45 miles per hour would be 96.4 feet. At 60 percent braking efficiency, the stopping distance at that speed would be 160.7 feet. In viewing the Grand Am and the Tercel at the CHP lot, Haupt discovered that the Grand Am’s bumper had slid under the Tercel’s bumper. This caused him to opine that, at the time of impact, the Grand Am was slowing down.
Haupt went to the scene on May 5, 2007.
In making his calculations, Haupt did not measure the roadway friction value, but instead assigned a value that represented the range between rolling friction and moderate braking. He estimated the weight of the vehicles’ occupants, obtained vehicle weights from literature, and did not take into consideration the weight of cargo, if any.
CHP Officer Mata, whose job at the scene was to document any physical evidence, found gouge marks in the roadway at the point of impact, but no skid marks from the Grand Am. Skid marks would have indicated a hard brake application by the driver.
On February 24, Reshan McClarty, a former police officer, was in the driveway of the Arco station at the intersection of Clovis and Ashlan. He was facing east and had an unobstructed view. He saw the Grand Am approach at what he “guesstimate[d]” to be between 45 and 55 miles per hour. It ran directly into the Tercel without braking or slowing down. Appellant had something silver in his hand and appeared to be talking on the telephone. After the collision, he got out of the car within minutes. He appeared to be stunned. He still had the silver object, which appeared to be a cell phone, and he had an ear piece in his ear.
DISCUSSION
I
ADMISSION OF DUI EVIDENCE
Defense counsel moved to exclude, as irrelevant and prejudicial, evidence appellant had suffered a prior DUI conviction, together with appellant’s own statement about his license being suspended for a DUI and any reference to his having taken a DUI class. The prosecutor stated she would not be introducing a prior conviction, but she sought leave to present evidence concerning appellant’s license suspensions. The prosecutor argued that appellant’s license suspensions, and the reasons therefor, were relevant to the knowledge or intent element of gross negligence, and the fact appellant had been told by DMV that he was not to drive was relevant to intent. She also argued the evidence was relevant to show some assessment of dangerousness on appellant’s part.
The trial court denied the motion to exclude. Consequently, CHP Officer Turner testified to appellant’s statement, following the collision, that his license was suspended for a DUI. In addition, Pedro Navarro, a driver safety manager for DMV, testified concerning appellant’s various driver’s license suspensions, including the one effective August 20, 2001. Navarro described that one as “an administrative per se suspension taken independent of the Court based on the reporting by law enforcement of a DUI on July 21st of 2001.” On cross-examination, defense counsel elicited from Navarro that the administrative suspension for DUI terminated on December 20, 2004, that appellant completed a DUI class, and that on the date of the fatal collision, appellant’s license was not suspended for a DUI.
Appellant now contends reversible error resulted from the jury learning, through Turner’s and Navarro’s testimony, that his license was suspended at the time of the charged crime, in part because of a 2001 conviction for DUI. He argues admission of the evidence was improper under Evidence Code sections 350, 352, and/or 1101, and that permitting the jury to consider the evidence resulted in a denial of his federal and state constitutional rights to due process.
Further statutory references are to the Evidence Code unless otherwise stated.
Appellant’s argument is not factually supported by the record. No evidence was presented that appellant was convicted of driving under the influence of drugs or alcohol. To the contrary, Navarro described the suspension as one that was independent of the court and based on a law enforcement report of a DUI. Navarro further explicitly testified that the DUI suspension ended in 2004, and that appellant’s driver’s license was not suspended for DUI at the time of the fatal collision. Turner did not testify otherwise; although appellant stated to him that his license was suspended for a DUI, Turner testified that he checked the license’s status through dispatch and confirmed the suspension. He did not testify that he confirmed the reason for the suspension. Accordingly, we will address the propriety of revealing to the jury that one of appellant’s driver’s license suspensions was due to a reported DUI and that he attended a DUI class. We review the trial court’s rulings in this regard for abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 705; People v. Barnett (1998) 17 Cal.4th 1044, 1118.)
We note that defense counsel sought exclusion of the DUI evidence on grounds of relevance and prejudice – inferentially, section 352 – and did not object based on section 1101. Instead, section 1101 was discussed in conjunction with the prosecutor’s request to present evidence of appellant’s prior motor vehicle accidents. Failure to raise a section 1101 objection in the trial court forfeits the issue for purposes of appeal. (People v. Thornton (2007) 41 Cal.4th 391, 430, fn. 6; People v. Gallego (1990) 52 Cal.3d 115, 174.) Inasmuch as the prosecutor at one point remarked that the request to admit prior acts evidence was closely related to issues concerning appellant’s DMV records and convictions, the trial court’s ruling on the DUI evidence touched on section 1101 concerns, and respondent does not now raise a claim of forfeiture, we conclude the issue is properly before us. (See People v. Clark (1992) 3 Cal.4th 41, 124 [§ 1101 issue preserved for appeal where, although defendant did not specifically mention statute, trial court was sufficiently alerted to issue by objections actually made].)
“Relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.) ‘While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.’ [Citation.]” (People v. Freeman (1994) 8 Cal.4th 450, 491.) Since only relevant evidence is admissible (§ 350), a trial court has broad discretion in determining relevance, but has no discretion to admit irrelevant evidence (People v. Heard (2003) 31 Cal.4th 946, 973). On the other hand, all relevant evidence is admissible unless excluded under the federal or state Constitution or by statute. (§ 351; People v. Benavides (2005) 35 Cal.4th 69, 90.)
One such exclusionary statute is section 1101. Subject to exceptions not at issue here, subdivision (a) provides that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Stated another way, “[s]ection 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity.” (People v. Catlin (2001) 26 Cal.4th 81, 145.) The statute “recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.]” (Ibid.; see People v. Ewoldt (1994) 7 Cal.4th 380, 393, 404.) Thus, subdivision (b) of the statute permits “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, …) other than his or her disposition to commit such an act.” “The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but … the list is not exclusive. [Citations.]” (People v. Catlin, supra, 26 Cal.4th at p. 146.)
Although many cases construing section 1101 deal with the admissibility of evidence of uncharged crimes, the statute is not so limited. (See, e.g., § 1101, subd. (b); Williams v. Superior Court (1984) 36 Cal.3d 441, 449; People v. Evers (1992) 10 Cal.App.4th 588, 598; People v. Vidaurri (1980) 103 Cal.App.3d 450, 461.)
The fact that evidence of prior misconduct demonstrates criminal propensity or disposition “is not a basis for exclusion unless the evidence otherwise lacks any probative value. [Citations.]” (People v. Gunder (2007) 151 Cal.App.4th 412, 417; see also People v. Costa (1953) 40 Cal.2d 160, 167.) Because such evidence may be highly inflammatory or otherwise prejudicial, however, “its admissibility should be scrutinized with great care. [Citation.]” (People v. Edelbacher (1989) 47 Cal.3d 983, 1007.) Thus, a determination that such evidence is relevant for a proper purpose under section 1101 does not end the inquiry; the evidence must also be assessed under section 352. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “Prejudicial,” for purposes of section 352, is not the same as “damaging.” (People v. Karis (1988) 46 Cal.3d 612, 638.) Instead, “[e]vidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable ‘risk to the fairness of he proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.) Thus, “[t]he evidence barred by … section 352 is evidence that uniquely causes the jury to form an emotion-based bias against a party and that has very little bearing on the issues of the case. [Citation.]” (People v. Thornton, supra, 41 Cal.4th at p. 427.) A trial court enjoys broad discretion in weighing probative value against prejudicial effect. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
In the present case, the prosecutor was required to prove appellant drove a vehicle “in the commission of an unlawful act, not amounting to felony” or “in the commission of a lawful act which might produce death, in an unlawful manner,” with gross negligence. (Pen. Code, § 192, subd. (c)(1).) “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious indifferences [sic] to the consequences is simply, “I don’t care what happens.”’ [Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) The test is an objective one: “if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 296, italics omitted.) The fact the test is objective does not mean, however, that appellant’s own subjective state of mind was irrelevant: “In determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. True, … the defendant’s lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse proposition does not logically follow, for if the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant’s position would have recognized the risk.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1205 (Ochoa), italics omitted.) In determining whether a defendant acted with gross negligence, “[t]he jury should therefore consider all relevant circumstances, … to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]” (People v. Bennett, supra, 54 Cal.3d at p. 1038; see People v. Costa, supra, 40 Cal.2d at p. 166.)
The jury was instructed that the underlying act was a violation of Vehicle Code section 22350, the basic speed law.
We conclude the trial court did not abuse its discretion in concluding the DUI evidence was relevant and admissible under section 1101, subdivision (b). Despite the fact appellant was not driving under the influence of drugs or alcohol at the time of the fatal collision, the evidence was probative of whether he acted with conscious disregard for the consequences of his actions, rather than mere mistake or inadvertence. “[A] motor vehicle driver’s previous encounters with the consequences of recklessness on the highway – whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator – sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum.” (People v. Ortiz (2003) 109 Cal.App.4th 104, 112-113 (Ortiz).) “A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving – whether intoxication, rage, or willful irresponsibility – the driver’s subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” (Id. at p. 115.)
We recognize that Ortiz involved a prosecution for second-degree implied-malice murder, and that “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (People v. Watson, supra, 30 Cal.3d at pp. 296-297, italics omitted.) Nevertheless, and especially in light of Ochoa, we find its reasoning persuasive.
Nor did the trial court err in its analysis under section 352. The DUI suspension was not in effect at the time of the fatal collision, there was no evidence appellant was driving under the influence when that crash occurred (although officers suspected it and understandably performed related tests and investigation), and there was no evidence appellant’s prior motor vehicle accidents occurred while he was under the influence. In her argument to the jury, the prosecutor did not use the evidence in an inflammatory manner or emphasize it in any way, but simply included that license suspension in her recap of appellant’s driving history.
Finally, our review of the record convinces us that even if error occurred, it is not reasonably probable a result more favorable to appellant would have resulted absent admission of the DUI evidence. (People v. Welch (1999) 20 Cal.4th 701, 749-750; People v. Watson (1956) 46 Cal.2d 818, 836; Ortiz, supra, 109 Cal.App.4th at p. 119.) The DUI evidence – which did not suggest appellant caused death, injury, or property damage on the occasion that gave rise to that suspension – was far less serious and inflammatory than the charged offense. (See People v. Wade (1996) 48 Cal.App.4th 460, 469.) Had the DUI evidence been excluded, jurors nevertheless would have learned that appellant’s driver’s license had been suspended multiple times, and that it was suspended at the time of the fatal collision. Moreover, the prosecution presented evidence that appellant believed marijuana could trigger his seizures and that he had been told not to use it, yet he had ingested it sometime before the fatal crash. He was on medication for seizures, but was not keeping the medication at a therapeutic level, and apparently his seizures were not well controlled. He had been informed, through his license suspensions, dealings with DMV, and previous accidents, that it was dangerous for him to drive, yet he drove well above a safe speed (whether because he was exceeding the posted speed limit or simply driving much too fast when approaching a line of cars stopped at a red light) in a car without brakes that were fully functional. He made little or no effort to stop prior to the collision. Thus, there was strong evidence establishing gross negligence even without the DUI evidence. (See People v. Whitson (1998) 17 Cal.4th 229, 251; People v. Flores (1947) 83 Cal.App.2d 11, 13-14.)
We reject appellant’s claim that admission of the evidence resulted in a violation of his right to due process. Generally speaking, “violations of state evidentiary rules do not rise to the level of federal constitutional error. [Citation.]” (People v. Benavides, supra, 35 Cal.4th at p. 91, fn. omitted.) “To prove a deprivation of federal due process rights, [appellant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is whether the trial court committed an error which rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due process” [Citations.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230, fn. omitted; accord, McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384.) The standard manifestly has not been met here.
II
REASONABLE DOUBT INSTRUCTION
Appellant claims CALCRIM No. 220 erroneously instructed the jury on the requisite burden of proof and presumption of innocence. As given, the instruction provided, in pertinent part: “In deciding whether the people have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the Defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.” (Italics added.) This was followed by CALCRIM No. 222, which defined “evidence” as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence”; and told jurors that “[n]othing that the attorneys say is evidence,” their remarks and questions are not evidence, and “[o]nly the witnesses’ answers are evidence.”
Appellant now contends the giving of CALCRIM No. 220 violated his state and federal constitutional rights to due process and a fair trial, because the instruction “improperly requires the defendant to persuade the trier of fact of his innocence by evidence presented at trial, and eliminates the doctrine of reasonable doubt due to lack of evidence.” He recognizes that we have rejected the claim (People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157), as have various other Courts of Appeal (e.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510), but says these cases were wrongly decided. We disagree and decline to revisit the issue.
III
VICTIM RESTITUTION
Although the People did not file a notice of appeal, respondent now contends the case must be remanded to the trial court for a determination of victim restitution. We agree.
Despite having filed a reply brief, appellant has not addressed this issue.
Direct victim restitution is mandated by the California Constitution (Cal. Const., art. I, § 28, subd. (b)); this mandate is carried out through Penal Code section 1202.4 (People v. Giordano (2007) 42 Cal.4th 644, 656; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045). Subdivision (f) of that statute provides, in pertinent part: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.”
The probation officer’s report that was read and considered by the trial court prior to appellant’s sentencing stated that restitution was an issue. Nevertheless, there was no discussion of victim restitution at sentencing, and no order of direct victim restitution was made. The prosecutor did not object to the omission.
Because victim restitution is mandatory, “a sentence without such an award is invalid.” (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751.) Generally speaking, a reviewing court can order correction of an unauthorized sentence, even when the prosecution has not appealed. (People v. Valdez (1994) 24 Cal.App.4th 1194, 1198; People v. Irvin (1991) 230 Cal.App.3d 180, 190-191.) Although the prosecutor’s failure to object at sentencing will sometimes affect application of this principle (see, e.g., People v. Tillman (2000) 22 Cal.4th 300, 302-303 (Tillman); cf. People v. Scott (1994) 9 Cal.4th 331, 353-356), it does not act as a bar here: Penal Code section 1202.46, which was enacted effective January 1, 2000, after imposition of the sentence that was at issue in Tillman (People v. Moreno (2003) 108 Cal.App.4th 1, 10), provides, in pertinent part: “[W]hen the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of [Penal Code] Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to [Penal Code] Section 1202.4 .” (Italics added.)
In People v. Moreno, supra, 108 Cal.App.4th 1, this court addressed a situation in which the subject of victim restitution never arose at the sentencing hearing. As a result, the trial court neither ordered restitution, retained jurisdiction to do so in the future, nor found compelling and extraordinary reasons for not ordering full restitution. The defendant appealed; we rejected his claims and affirmed the judgment in its entirety. Again, no mention was made of victim restitution in connection with the appeal, and remittitur duly issued. While the appeal was pending, however, the probation officer asked the trial court to order restitution. The trial court granted the request after remittitur had issued, and a further appeal followed. (Id. at p. 4.) We rejected the defendant’s challenge to the order of restitution, stating: “We conclude that, notwithstanding a trial court’s failure to retain jurisdiction to impose or modify a restitution order, the second part of [Penal Code] section 1202.46 permits the prosecutor, at any time, to request correction of a sentence that is invalid because, as in the present case, the court at the initial sentencing had neither ordered restitution nor found ‘compelling and extraordinary reasons’ for ordering less than full restitution. The victim too may make such a request, or the trial court may act on its own motion. It follows that the court is not barred from correcting the invalid sentence simply because the prosecutor failed to object when it was imposed. An invalid or unauthorized sentence is subject to correction whenever it comes to the court’s attention. [Citations.]” (People v. Moreno, supra, at p. 10.)
We reach a similar conclusion here. Since the district attorney could request correction by the trial court at any time, we see no reason not to permit the Attorney General to request that this court remand for correction, even in the course of a defendant’s appeal.
DISPOSITION
The case is remanded to the trial court for a determination of victim restitution pursuant to Penal Code section 1202.4, subdivision (f). In all other respects, the judgment is affirmed.
WE CONCUR: Levy, J. Kane, J.