Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge, Super. Ct. No. 1098953
Keiran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Kelly O. Callahan stands convicted, following a jury trial, of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1); count I), failing to appear while on bail (§ 1320.5; count II), using methamphetamine (Health & Saf. Code, § 11550, subd. (a); count III), and falsely identifying himself to a peace officer (§ 148.9; count IV). Following a court trial, an on-bail enhancement (§ 12022.1) was found true with respect to count II. Appellant admitted having suffered a prior serious felony conviction that was also a strike (§ 667, subds. (a), (d)), and having served a prior prison term (§ 667.5, subd. (b)). Sentenced to a total of 17 years 4 months in prison, he now appeals, raising various claims of trial and sentencing error. For the reasons that follow, we will affirm.
All statutory references are to the Penal Code unless otherwise stated.
As no issues concerning counts II and IV are raised on this appeal, we recite only the facts relevant to counts I and III.
I
PROSECUTION EVIDENCE
At approximately 3:49 p.m. on June 24, 2005, Michael Haro, a bus driver, was working with his brother on a truck in front of a residence at the corner of Mercy and Whitmer Court in Modesto. Ralph Absher was doing some yard work on his property on the east side of Mercy.
Haro heard an ice cream truck and a loud vehicle. As he looked down the road, he saw a vehicle heading southbound at a pretty fast speed. The area was a residential neighborhood; Haro believed the speed limit was 25, and he estimated the vehicle to be going 35 to 40 miles per hour. The vehicle swerved to avoid striking the ice cream truck, which was travelling southbound at a slow rate of speed, and it came across the street on the opposite side, traveled some distance after it went around the ice cream truck, and hit Absher. Haro estimated approximately 10 to 15 seconds elapsed between when the vehicle passed the ice cream truck and when it struck Absher. Haro did not believe the brakes were applied before the collision, as he heard a gravel noise when they were applied, and the car kind of slid at that point.
Haro called 911, then attempted to render aid. Absher was badly mangled and appeared to be beyond help. Appellant, who was the driver of the vehicle, said something to his passenger, then got out and said, “‘Oh my God, oh my God, what did I do, what did I do?’” The vehicle sustained damage from the impact of Absher’s body striking it.
Absher was pronounced dead just over half an hour later. The cause of death was multiple blunt-force injuries, consistent with an automobile striking a pedestrian at a nontrivial speed.
Jay McDonald was at Mercy and Finlandia, directly across the street and approximately 18 feet away, when he saw the car go around the ice cream truck. McDonald felt the vehicle was going a bit more than the speed limit, which he believed to be about 25. Absher was using a hoe to weed and was standing off the gravel. The car went into the gravel area and struck him. Absher went up over the top of the car and came down the back. As McDonald was walking across the street, appellant, the driver of the vehicle, said “‘What happened?’” McDonald responded, “‘You hit him.’”
Modesto Police Officer Nicolai arrived on the scene shortly after 4:00 p.m. He observed clothing in the dirt shoulder area on the east side of the roadway. A burgundy Chevrolet Caprice was parked facing sort of southbound in the northbound lane. It was angled to the west just a bit, and the wheels were slightly canted, as if the driver had made a little bit of a right turn. It had significant damage on the hood and the windshield, and a tiny bit of damage on the roof, just past the top of the windshield. Tire tracks and dirt on the driver’s side tires showed that the left side of the car had exited the paved roadway and gone about two feet onto the shoulder. There was approximately 10 feet of shoulder from the east edge of the roadway, then a levee, and then a fence line. The shovel Absher had been using to clean up weeds was found, handle broken, about halfway up the levee. No signs of braking were found. Since the car was equipped with anti lock brakes, such signs may not have been visible on the pavement, but would have been visible on the dirt. The car was stopped some 80 to 90 feet from the area of impact.
Appellant was sitting in the back of an ambulance. He related that he had taken his eyes off the road to look at his passenger, who was yelling at him to look out. Appellant told Nicolai that he was going about 35 miles per hour. He said nothing about slowing down at any point. Although Nicolai had been trained in recognizing objective symptoms of methamphetamine use, he did not check appellant’s nystagmus or pupils. It is difficult to check demeanor when people have been involved in a collision, and appellant was pretty shaken up and distraught.
In Nicolai’s experience, EMT personnel will note an odor of alcohol, but will not usually report drug symptoms unless something is very obvious. Nicolai was told appellant was sitting in the ambulance because he had been having difficulty breathing.
Shortly after Nicolai spoke with him, appellant was taken to have his blood drawn, as he had said he had had about half a glass of wine. Toxicology results showed no alcohol in appellant’s blood. However, his blood contained 280 nanograms per milliliter of methamphetamine, as well as methamphetamine’s major metabolite, amphetamine. The normal range for methamphetamine users is 100 to 300 nanograms per milliliter. The levels suggested methamphetamine had been ingested within 48 hours. The fact the toxicology results showed methamphetamine in appellant’s blood and he drove onto the wrong side of the roadway and on the shoulder led Nicolai to believe appellant was impaired.
II
DEFENSE EVIDENCE
Appellant, who had suffered four prior felony convictions, testified that at the time of the incident, he had worked all day and was returning home after running an errand. As he turned onto Mercy, he saw an ice cream truck up the road a bit, and another vehicle coming down the road toward him. Appellant got in line behind the ice cream truck to allow the other vehicle to pass. Once it had, he pulled out from behind the truck. He swung wide to stay away from the truck and the children who were coming out to it from some of the culdesac areas. As he did so, he saw Absher, who was three to four feet off the soft shoulder of the road and into the dirt area, and who appeared to be leaning on a shovel or a hoe.
Appellant gave the ice cream truck a fairly wide berth as he was passing it. His attention was directed to his right, through the passenger’s side of the car, toward the sidewalk area of Mercy, where there were children coming out to go to the truck. He heard a noise from his passenger that sounded like an intake of breath, and this caused him to look further to his right, as he believed that to be the area of concern. In fact, his passenger’s attention was directed to the left side of the vehicle, and appellant struck Absher. Absher came across the hood and into the windshield. The windshield seemed like it was going to hit appellant, and he jerked the car to the left. As a result, he exited the road onto the dirt, then came back onto the road and came to a stop. He put the car in park and shut off the engine, then went directly toward Absher, who was lying on the dirt. Appellant did not call 911, but other people were starting to show up, and the police then arrived. When appellant saw Absher’s condition, he started to collapse emotionally and could not catch his breath. Ambulance attendants gave him oxygen and hooked him up to an EKG.
Appellant estimated his maximum speed while on Mercy at between 25 and 30 miles per hour. He may have told Nicolai that he was going 35 miles per hour. He was not looking at his speedometer. He slowed down prior to pulling next to the ice cream truck. Nothing obscured his view of Absher, whom he glimpsed briefly immediately before the impact. Appellant did not apply his brakes, as there was no time to react. Appellant had the impression that Absher was in mid step or stumbling. He believed Absher had stepped onto the asphalt roadway, within two to three feet of the edge of the road. Appellant was either right at the speed limit or just barely above it.
Appellant last used methamphetamine the Tuesday prior to the Friday on which the collision occurred. A coworker had put some in both their coffees that morning, as they were behind schedule at their job and really needed to get some work done. Appellant was not still feeling the effect of the methamphetamine as he was driving before the collision. He conceded, however, that it would have been safer if he had had no methamphetamine in his system.
Jennifer Heckathorn, a private investigator who previously was a Turlock police officer and, in that capacity, a member of that department’s Major Accident Investigation Team for 12 years, obtained her own measurements and data from the scene of the collision, and also reviewed the police reports and photographs in this case. She concluded that the driver’s side of appellant’s vehicle left the roadway about two feet from the edge of the roadway to the outside of the tire. As she did not have the point of rest of the victim or length of skid marks, she was unable to determine the vehicle’s speed. Heckathorn was present when a Ford Explorer went around an ice cream truck. The Explorer, which was narrower than appellant’s Caprice, could not go around the truck without going into the oncoming traffic lane, due to the width of the ice cream truck and the roadway itself.
DISCUSSION
I
ADMISSION OF EXPERT TESTIMONY CONCERNING METHAMPHETAMINE
A. BACKGROUND
Nancy Enkema, a forensic toxicologist working in the toxicology unit of the Department of Justice’s Bureau of Forensic Services, was called as a witness by the prosecution. Enkema testified that she had been with the Department of Justice for almost seven years, and that basically, she analyzed biological samples for the presence of drugs. She had a Bachelor of Science degree in forensic science, and a minor in chemistry, from California State University, Sacramento; had worked as a toxicologist for a private forensic laboratory for 11 years following graduation; was a member of the California Association of Toxicologists and attended their meetings (which was training) and workshops; and had testified as an expert in forensic toxicology at least 150 times.
Part of Enkema’s work involved testing for methamphetamine. She explained that methamphetamine is a central nervous system stimulant that has an effect on people. As a stimulant, it can cause first euphoria, then maybe talkativeness or hypervigilance. Physiologically, it can dilate the pupils and make them nonreactive to light, and can raise temperature, pulse, and heartbeat.
Enkema used a gas chromatograph/mass spectrometer, a type of instrument she had used for 18 years, to analyze the blood drawn from appellant in this case. As a result, she found methamphetamine and its major metabolite, amphetamine. The methamphetamine was present at a concentration of 280 nanograms per milliliter. The normal range usually seen in people using methamphetamine is between 100 and approximately 300 nanograms per milliliter. Enkema was unable to tell from the number how recently the methamphetamine was ingested, but the level suggested that, depending on how it was used, it would certainly be within 48 hours.
Enkema testified that the methamphetamine was in the bloodstream and circulating, and that it was having an effect on the brain and so exerting some effect on the person. It would not be prudent to drive with that much or any methamphetamine in one’s system. The drug can cause muscle spasms and tremor, and a driver needs to be coordinated. Time perception can be speeded up so time seems to be racing. People tend to take risks when they are on methamphetamine, perhaps even driving faster than they normally would. They can also, because of the hypervigilance, have their focus get stuck on just one object so that they are inattentive to what other vehicles are doing and the like. Methamphetamine is prescribed therapeutically for some conditions, but the resulting levels in the blood are very low, from 20 to perhaps 40 nanograms per milliliter.
The prosecutor gave Enkema a hypothetical situation in which a person was traveling 35 to 40 miles per hour on a residential roadway, went to pass an ice cream truck, proceeded into the left lane, and then proceeded onto the shoulder and struck a pedestrian. He then asked whether such a scenario would be driving consistent with the use of methamphetamine. Enkema answered that it could be. The prosecutor then asked whether Enkema could say, with absolute scientific certainty, that the methamphetamine use caused the collision. Enkema answered that she could not.
On cross-examination, Enkema testified that both methamphetamine and its metabolite are pharmacologically active, so, while the methamphetamine is more potent than the amphetamine, the amphetamine could also be contributing to the various effects. Physical symptoms, such as dilated pupils and talkativeness, possibly might be noticeable to trained law enforcement or emergency medical personnel, if an examination were done and the symptoms were present. The presence of symptoms would depend on the person and his or her tolerance to the drug. Conditions such as lack of judgment and time racing are generic and can be present, but may not be, since every person is different in his or her metabolism and tolerance. With respect to her opinion that it would not be prudent to drive with methamphetamine in one’s system, Enkema testified that she would have the same opinion about alcohol.
As to whether the amount of metabolite present indicated the amount of time that had passed since the methamphetamine was ingested, Enkema explained that it has been postulated, from studies conducted in different laboratories and numbers that have been compiled, that amphetamine will start appearing 10 hours after ingestion and the amount will increase as the methamphetamine is metabolized. She agreed that the effect of methamphetamine is different from human being to human being, and felt it was possible some would be more highly affected than others.
B. Analysis
We have described Enkema’s testimony in detail, as appellant now raises a multitude of interrelated claims with respect to its admission and the manner in which the prosecutor used it. As nearly as we are able to discern, appellant contends (1) the trial court erred in allowing expert testimony to prove the prosecutor’s “calculus” that it is a bad idea to drive after ingesting methamphetamine, as driving under the influence requires a showing of driving impairment, not just that the ingested substance could impair; (2) Enkema’s testimony failed to establish the requisite actual impairment; (3) even if the testimony encompassed the issue of actual impairment, it was irrelevant because no offense involving actual driving impairment was alleged; (4) even if Enkema’s testimony was admissible with respect to count III or some narrow issue, it was unduly confusing and prejudicial under Evidence Code section 352; (5) the trial court’s error was prejudicial because drug use evidence is prejudicially inflammatory; moreover, jurors’ request for the toxicology report showed they were not convinced by the prosecution’s driving-conduct evidence of negligence and instead were searching for some wrong on which to base their verdict; (6) the prosecutor’s exploitation of the trial court’s error in admitting the evidence compounded the prejudice; (7) the evidentiary error was also compounded by the trial court’s failure to give an instruction along the lines of CALCRIM No. 2100 [Driving Under The Influence Causing Injury (Veh. Code, § 23153(a))], thereby leaving the jury susceptible to the prosecutor’s misstatements of law and fact; (8) the prosecution’s case proceeded on a legally invalid theory, there being two-fold legal error in the belief that evidence of driving under the influence could be introduced even where driving under the influence was not charged as an offense or as a predicate act for vehicular manslaughter, and in the belief that evidence of general physiological effect could be used as proof of driving impairment and thus to show negligence in the operation of a vehicle; (9) trial counsel was ineffective for failing to renew his objection to the evidence and the prosecution’s theory, and for failing to object to Enkema’s alleged expertise concerning the effects of methamphetamine and actual driving impairment in appellant; and (10) by testifying that it was not prudent for appellant to drive, Enkema proffered unqualified testimony on the ultimate issue of the case.
We view the bulk of appellant’s claims to rise from one fundamental assertion: that the prosecutor could not use the evidence of appellant’s methamphetamine use as a factor tending to show gross negligence for purposes of the vehicular manslaughter charge. We reject this premise.
Appellant was charged in count I with violating section 192, subdivision (c)(1), which defines vehicular manslaughter, except as provided in subdivision (a) of section 191.5, as “driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” Section 191.5, subdivision (a) defines the separate offense of gross vehicular manslaughter while intoxicated as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140 [person under age 21 driving with blood-alcohol content of 0.05 percent or more], 23152 [driving under the influence of alcoholic beverage or drug] or 23153 [driving under the influence of alcoholic beverage or drug and causing great bodily injury] of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”
Both offenses require a showing of gross negligence. “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.] The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett); People v. Watson (1981) 30 Cal.3d 290, 296.) Section 191.5, subdivision (a) requires the additional showing of driving while intoxicated. (See People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159.) Insofar as the Vehicle Code violations listed in that statute are concerned, where drug ingestion is involved, it is not enough that the defendant ingested some drug that could have caused impairment. Instead, the defendant’s ability to drive must actually have been impaired. (People v. Enriquez (1996) 42 Cal.App.4th 661, 665-666; see also People v. Canty (2004) 32 Cal.4th 1266, 1278.)
In the course of his argument, appellant cites People v. Smith (2008) formerly 161 Cal.App.4th 622. The California Supreme Court ordered that Smith not be officially published – thereby rendering the case not citable (Cal. Rules of Court, rules 8.1105, 8.1115, 8.1125) – on June 11, 2008, almost six months before appellant’s opening brief was filed.
Even where a violation of section 191.5, subdivision (a) is at issue, gross negligence is not shown by the mere fact of driving under the influence and violating traffic laws. (People v. Ochoa (1993) 6 Cal.4th 1199, 1207; People v. Von Staden (1987) 195 Cal.App.3d1423, 1427.) It follows, then that such a showing is insufficient for purposes of a violation of section 192, subdivision (c)(1). It does not follow, however, that evidence of drug ingestion – even if not shown to cause actual impairment – is irrelevant to, or cannot be considered in determining, the question whether gross negligence exists. Although Bennett dealt with a prosecution under section 191.5, at issue was the requirement that the defendant act with gross negligence (Bennett. supra, 54 Cal.3d at p. 1036), which is defined the same whether the prosecution is under section 191.5 or section 192, subdivision (c)(1). In Bennett, the California Supreme Court determined that “[t]he jury should … consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]” (54 Cal.3d at p. 1038.) It concluded: “[T]he finding of gross negligence required to convict a defendant of gross vehicular manslaughter while intoxicated may be based on the overall circumstances surrounding the fatality. Intoxication is one of those circumstances and its effect on the defendant’s driving may show gross negligence.” (Id. at p. 1040.)
In the present case, even if we assume appellant was not shown to be intoxicated in the sense that his driving was actually impaired by his methamphetamine ingestion, we see no reason why the fact he ingested a drug prior to driving should not be considered in determining whether he was grossly negligent, i.e., exercised so slight a degree of care as to raise a presumption of conscious indifference to the consequences. (See Bennett, supra, 54 Cal.3d at p. 1036.) Regardless of whether appellant’s driving was impaired, he still got behind the wheel of a car after knowingly ingesting a drug he had taken before and which, his own testimony implies, he took precisely because it had some effect on him. The fact appellant showed no noticeable symptoms of drug usage may have militated against a finding of gross negligence and may have caused the prosecutor not to charge any offense in which actual driving impairment had to be shown, but this does not mean the prosecutor could not argue, or the jury consider, appellant’s recent methamphetamine ingestion as a factor indicating gross negligence.
In light of the foregoing, we conclude that the prosecution’s case did not proceed on a legally invalid theory, as appellant’s methamphetamine ingestion was relevant to the existence of gross negligence even where driving under the influence was not charged as an offense or as a predicate act for vehicular manslaughter, and even if actual impairment was not shown. It necessarily follows that the trial court did not err by admitting expert testimony on the subject.
With respect to appellant’s claims concerning Enkema’s testimony itself, for the most part they have been forfeited for purposes of appeal by appellant’s failure to make a specific and timely objection at trial. (E.g., People v. Bennett (2009) 45 Cal.4th 577, 606-607 [more prejudicial than probative under Evid. Code, § 352]; People v. Richardson (2008) 43 Cal.4th 959, 1002 [relevance]; People v. Panah (2005) 35 Cal.4th 395, 478 [witness’s qualifications as expert]; People v. Gurule (2002) 28 Cal.4th 557, 626 [Evid. Code, § 352]; People v. Seaton (2001) 26 Cal.4th 598, 642-643 [foundation]; People v. Ramos (1997) 15 Cal.4th 1133, 1171 [admission of evidence in general]; People v. Garceau (1993) 6 Cal.4th 140, 179 [relevance], disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; People v. Roberts (1992) 2 Cal.4th 271, 298 [witnesses’ qualifications as experts]; People v. Flores (1992) 7 Cal.App.4th 1350, 1359-1360 [relevance; not proper subject for expert testimony; witness was not qualified expert; inadmissible character evidence; failure to exercise discretion under Evid. Code, § 352; admission of evidence denied defendant due process].) Appellant points to this exchange, which occurred during jury selection, well after the court had asked counsel whether there were any remaining motions in limine and had been told by both that there were not:
“THE COURT: … And, Mr. Cole [defense counsel], you had some questions on – voir dire questions you wanted to present to the jury. [¶] … [¶]
“MR. COLE: Yes, I did. And – Mr. Mayne [prosecutor] made it very clear that the methamphetamine was not a part of the gross vehicular manslaughter case.
“MR. MAYNE: That’s not exactly correct.
“MR. COLE: Well, it’s not been charged.
“THE COURT: Well, it’s not charged he’s driving under the influence.
“MR. COLE: That’s right.
“THE COURT: It is charged as being under the influence.
“MR. MAYNE: Well, it’s charged as – and, Your Honor, to be clear, I mean, we can allege use or under the influence.
“THE COURT: That’s correct. [¶] … [¶]
“MR. MAYNE: It could be simply recent use. Now, what the testimony will be from the Department of Justice is as follows: The methamphetamine was ingested shortly before; there was a substantial active amount in the defendant’s system, and that it’s a bad idea to ingest methamphetamine and drive.
“Now, that would be one element of something that would be meeting the gross negligence standard; so they’re not entirely separate. But this is not – we’re not alleging – just as something where you shouldn’t take methamphetamine and get in the car.
“Now, there are no – there’s no credible DRE [presumably, drug recognition evaluation or expert] down here, there’s no – none of the FST’s [presumably, field sobriety tests]; so we did not charge it as a 191.5, but that doesn’t mean that we can’t introduce the fact that he ingested methamphetamine as part of the entire calculus of the situation where, A, it’s a bad idea to go driving after you’ve ingested methamphetamine.
“THE COURT: What’s the precise question you want to ask them, Mr. Cole? Certainly the question about can they keep all the charges separate is a valid question.
“MR. COLE: Yes, it’s a valid question.
“THE COURT: And they need to be convinced of each of the elements of each of the offenses beyond a reasonable doubt.
“MR. COLE: That’s correct.… [¶] … [¶] Is [Mr. Mayne] going to argue to the jury at the end of the day that this accident was caused because Mr. Callahan was under the influence of methamphetamine?
“MR. MAYNE: Might be one of the factors.
“MR. COLE: Because that’s not been charged.
“MR. MAYNE: Doesn’t matter. It’s something that the jury can consider.
“MR. COLE: And he wants to slip it in through the back door.
“MR. MAYNE: It’s not being slipped in through the back door.… I spoke extensively with Mr. Winston, Mr. Cole’s predecessor in interest, about the fact this was a recent use of methamphetamine. And … I think it’s clearly relevant, and I think it’s something the jury can consider.
“Now, the jury obviously – I concur with the Court that the jury has to treat each count separately. But, you know, if you put on a blindfold before you get in the car, that’s a bad idea. If you
“MR. COLE: And if he is charged
“MR. MAYNE: – ingest methamphetamine
“MR. COLE: – was charged with a blindfold on, that would be an element of gross vehicular manslaughter, but that’s not what the pleading says.
“THE COURT: Well, not to get into too much of what the evidence will be or will not be, I suppose, there’s no specific motion in limine, but it doesn’t sound like there’s going to be expert opinion that there was – that he was impaired for purposes of driving because of the ingestion of methamphetamine.
“MR. COLE: There’s not going to be.
“THE COURT: Right. But by the same token
“MR. COLE: Except the seed of prejudice that’s going to get planted. [¶] … [¶] And I want to know how I can argue that.
“THE COURT: If there is going to be an argument that the methamphetamine … impaired him for purposes of driving, I think that would need to be supported by an expert opinion. If there’s not going to be any expert opinion, I probably would sustain an objection either to that argument or to asking that from a lay standpoint.
“In terms of voir dire questions that are here, I don’t think it’s necessary to get too much into prejudging the evidence [¶] … [¶] which is the concern. We can’t ask the jury how would you decide this question?
“MR. COLE: … What I was probing for was the notion that, oh, there’s methamphetamine; therefore, he has to have been a bad guy when he hit him.
“MR. MAYNE: And, Your Honor, I have no objection to the question is he automatically guilty because he ingested methamphetamine; would you automatically find him guilty based on that?
“MR. COLE: Then that’s the question I’ll ask.
“THE COURT: That sounds like an acceptable question.
“MR. COLE: That’s the question I’ll ask. And that’s what I was driving at.”
“‘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, supra, 15 Cal.4th at p. 1171.) “[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal.” (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Assuming the quoted exchange constituted a motion in limine – something we highly doubt, since it concerned voir dire questions and the trial court stated, without contradiction, that there was no specific in limine motion – the trial court’s ruling concerned the issue of whether the methamphetamine impaired appellant’s driving, not whether his having ingested the substance could be considered in determining whether he acted with gross negligence. Moreover, the court stated it probably would sustain an objection. This is a clear indication that it was not making a final ruling on the issue. Under such circumstances, the discussion during jury selection did not preserve for appeal appellant’s claims concerning Enkema’s testimony. (See People v. Roberts, supra, 2 Cal.4th at p. 297; People v. Jacobs (1987) 195 Cal.App.3d1636, 1650-1651.)
Appellant thus is relegated to arguing that his trial attorney was ineffective for failing to object on the various grounds appellant now wants to raise on appeal. The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
“A claim of ineffective assistance of counsel based on a trial attorney’s failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission [citation], but also that the motion or objection would have been meritorious, if the defendant is to bear his burden of demonstrating that it is reasonably probable that absent the omission a determination more favorable to defendant would have resulted. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 876.) “Defendant has the burden of establishing, based on the record on appeal [citations] and on the basis of facts, not speculation [citation], that trial counsel rendered ineffective assistance. [Citation.]” (Id. at pp. 876-877.) “‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”’ [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 925.) Whether to object to arguably inadmissible evidence or to allege prosecutorial misconduct are inherently tactical decisions; hence, failure to object rarely establishes counsel’s incompetence. (People v. Maury (2003) 30 Cal.4th 342, 415-416, 419.) “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]” (People v. Weaver, supra, 26 Cal.4th at p. 926.)
On the record before us, we are unable to conclude that there could be no satisfactory explanation for trial counsel’s various failures to object. (See People v. Bell (1989) 49 Cal.3d 502, 546.) As we have explained, ante, evidence of appellant’s recent methamphetamine use was relevant because it had some tendency in reason to prove appellant acted with gross negligence (see People v. Freeman (1994) 8 Cal.4th 450, 491; People v. Garceau, supra, 6 Cal.4th at p. 177); hence, it could properly be considered by the jury in determining that question even though no offense alleging actual driving impairment was charged. Accordingly, any objection to the prosecutor’s proceeding on such a theory, or to admission of evidence in support of such a theory, would have been unavailing. Trial counsel cannot be faulted for failing to make unmeritorious objections. (See People v. Mattson, supra, 50 Cal.3d at p. 876.) Similarly, since Enkema’s testimony was admissible with respect to count I as well as count III, counsel reasonably could have concluded it was not unduly confusing and prejudicial and so did not warrant objection under Evidence Code section 352.
The record on appeal also fails to show that trial counsel lacked a reasonable tactical basis for declining to challenge Enkema’s qualifications or competence to testify as an expert concerning the subject matter of her testimony. (See People v. Hart (1999) 20 Cal.4th 546, 630.) “A person is qualified to testify as an expert if [she] has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on the subject to which [her] testimony relates.” (Evid. Code, § 720, subd. (a).) Such knowledge, skill, experience, training, or education may be shown by the witness’s own testimony. (Id., subd. (b).) “The essential questions which must be favorably answered to qualify a witness as an expert are two: Does the witness have the background to absorb and evaluate information on the subject? Does [she] have access to reliable sources of information about the subject? Two aspects of the witness’s history are thus involved: the first, a subjective aspect, the capacity of the witness to understand and report; the second, an objective aspect, the witness’s access and exposure to relevant data on the subject matter on which [her] opinion is sought. [Citation.]” (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.) “The trial court’s determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.] ‘“Where a witness has disclosed sufficient knowledge of the subject to entitle [her] opinion to go to the jury, the question of the degree of [her] knowledge goes more to the weight of the evidence than its admissibility.”’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
Because appellant did not challenge Enkema’s qualifications as an expert, we cannot tell whether the record is complete on that issue. (See People v. Gonzalez (2006) 38 Cal.4th 932, 948.) “‘Error regarding a witness’s qualifications as an expert will be found only if the evidence shows that the witness “‘“clearly lacks qualification as an expert.”’”’ [Citations.]” (People v. Panah, supra, 35 Cal.4th at p. 478.) On the information before us, we cannot say the trial court would have manifestly abused its discretion by permitting Enkema to testify as an expert over objection. (See, e. g., People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063; People v. Bolin, supra, 18 Cal.4th at p. 322; People v. Clark (1993) 5 Cal.4th 950, 1018-1019, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It follows that defense counsel’s decision to refrain from so objecting was not one for which there could be no satisfactory explanation. (See People v. Hart, supra, 20 Cal.4th at p. 630.)
Nor do we agree with appellant that, by testifying it was not prudent for appellant to drive after ingesting methamphetamine, Enkema proffered unqualified testimony on the ultimate issue of the case. “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) “Nevertheless, an expert opinion is inadmissible ‘if it invades the province of the jury to decide a case.’ [Citation.] Such evidence is ‘wholly without value’ to the trier of fact. [Citation.] The determination whether an expert witness’s opinion bears upon or decides an ultimate issue in the case is sometimes a difficult decision, and ‘a large element of judicial discretion [is] involved.’ [Citation.]” (People v. Frederick (2006) 142 Cal.App.4th 400, 412.)
In the present case, Enkema testified generally, and not specifically about appellant’s driving. Moreover, she did not testify that appellant acted with gross negligence, or that driving with methamphetamine in one’s system reached such a level of lack of care. She simply opined that it would not be prudent to drive with methamphetamine in one’s system, and then explained why. We see no real difference between such testimony and, for example, the permissible opinion of an expert on the illegal distribution of pharmaceuticals that certain drugs were possessed for the purpose of illegal street sales. (See People v. Doss (1992) 4 Cal.App.4th 1585, 1596.) This was not a situation in which the expert’s opinion amounted to nothing more than an expression of her belief as to how the case should be decided, thereby supplanting, rather than merely aiding, the jurors. (See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183.)
With respect to defense counsel’s failure to object to alleged prosecutorial misconduct, for the most part the prosecutor’s argument was unobjectionable because, contrary to appellant’s assertion, the trial court did not err by admitting Enkema’s testimony and so there was no error for the prosecutor to “exploit.” The prosecutor did not commit misconduct by arguing to the jury that appellant’s methamphetamine use was a factor to be considered in determining whether he acted with gross negligence. Even assuming the prosecutor stepped over the line by inviting the jury to speculate, we cannot say defense counsel acted unreasonably by choosing to counter argument that appellant was high with argument of his own. (See People v. Morales (1992) 5 Cal.App.4th 917, 929.) Moreover, it is not reasonably probable a result more favorable to appellant would have been reached had defense counsel successfully objected to this portion of the argument. The prosecutor expressly told jurors he could not prove how much the methamphetamine was affecting appellant or that appellant was under the influence for driving purposes. He also argued that gross negligence existed even if the methamphetamine was factored out.
At one point, the prosecutor told jurors: “Now, neither one of us is required to bring in all the evidence, and you wouldn’t want us to. It would take us six weeks to do this trial. That doesn’t make any sense. [¶] So the question, though, is what things logically are missing? And let me just talk to you about something that from the prosecution side is logically missing, and you can make an inference about. [¶] Now, we eventually determined that Officer Nicolai didn’t have the alcohol test, and I didn’t bring in the people who tested the blood for alcohol. So you can assume one of a couple of things. One, there was no alcohol in the blood. Two, there was a nominal amount of alcohol in the blood. There wasn’t enough to – for me to come in and bring in that evidence. That would make it interesting to you. So you can assume. It’s an okay thing to do. Say hey, he wasn’t drunk at the time. He was high. He was on methamphetamine. That’s something you’re allowed to do. If you think that there’s evidence that would be necessary, you can think about, well, probably they didn’t bring it in for a reason. [¶] Now, you know, why didn’t the prosecution bring in the witnesses who didn’t see it but who were nearby? Well, you know, there’s another reason for that, and that’s again, we don’t want to do six-week trials. We had the people who saw exactly what happened.”
In an attempt to show prejudice, either from admission of the evidence or the prosecutor’s argument, appellant points to the jury’s purported request for the “missing” toxicology report. It appears appellate counsel needs to read the record more thoroughly. During deliberations, the jury submitted a request that read, “Want to see toxi report court recorder notes.” Because the toxicology report was not in evidence, the court and counsel interpreted the request as being for a read back of the toxicologist’s (Enkema’s) testimony. When the court addressed the matter with the jurors, one of them confirmed that read back of the testimony was indeed what they had meant.
Last, appellant contends the evidentiary error was compounded by the trial court’s failure to give an instruction along the lines of CALCRIM No. 2100 [Driving Under the Influence Causing Injury (Veh. Code, § 23153(a))], thereby leaving the jury susceptible to the prosecutor’s misstatements of law and fact. There was neither evidentiary error nor need to give an instruction on what constitutes driving under the influence or impaired driving.
II
SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence is insufficient to sustain his convictions on counts I and III. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d562, 577.) “Where the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.)
A. Count I
As previously stated, appellant was convicted in count I of violating section 192, subdivision (c)(1). He now takes issue with the jury’s finding of gross negligence.
Again, “[g]ross 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.] The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]” (Bennett, supra, 54 Cal.3d at p. 1036; People v. Watson, supra, 30 Cal.3d at p. 296.) In determining whether a defendant acted with conscious disregard of the consequences rather than mere inadvertence, a jury is to consider all relevant circumstances, including level of intoxication. (Bennett, at p. 1038.) Moreover, “[i]n 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, supra, 6 Cal.4th at p. 1205.)
In the present case, a rational trier of fact could have concluded from the evidence, together with inferences reasonably drawn therefrom, that at the time of the collision, appellant was driving in a residential area, on a fairly narrow street. Although he was aware that children might be present, he drove faster than was safe for conditions. There was a significant amount of methamphetamine in his system; he had previously used the drug, was aware of at least some of its effects, and admitted it would have been safer had he had no methamphetamine in his system. Appellant saw Absher, who was several feet off the side of the road, prior to the collision. Although appellant professed concern for children coming out to the ice cream truck, instead of waiting behind the truck or passing it very slowly, he passed it in such a manner that he ran at least partway off the road and struck Absher with enough force to mangle his body. Under the circumstances, jurors reasonably could have concluded appellant’s conduct did not disclose mere inadvertence, but instead showed a conscious indifference to consequences such that he was grossly negligent. (See People v. Costa (1953) 40 Cal.2d 160, 166.)
In his reply brief, appellant inexplicably says there was no evidence of methamphetamine in appellant’s blood, but only evidence of metabolites. This assertion is so patently incorrect that we are hard-pressed to assume it was the result of inadvertence: As appellant himself recognizes in his opening brief, Enkema clearly and expressly testified that, in analyzing appellant’s blood, she “found methamphetamine and its major metabolite, which is amphetamine,” and that “the methamphetamine was present at a concentration of 280 nanograms per milliliter.” (Italics added.) Appellate counsel would do well to review rule 5-200(A) and (B) of the California Rules of Professional Conduct of the State Board of California.
B. Count III
Appellant was convicted in count III of violating Health and Safety Code section 11550, subdivision (a). He now insists the evidence was insufficient to support a finding that he was under the influence of methamphetamine. As appellant points out, “being under the influence” for purposes of Health and Safety Code section 11550, subdivision (a) “requires that the person be under the influence in any detectable manner.” (Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 727.) Appellant argues that no such influence was detected by officers or EMT’s at the scene of the collision, and that Enkema’s testimony did not supply the necessary proof.
Appellant ignores the fact that the statute can be violated in alternative ways: by being under the influence of methamphetamine or by using methamphetamine. (Health & Saf. Code, § 11550, subd. (a); Gilbert v. Municipal Court, supra, 73 Cal.App.3dat p. 727; People v. Davalos (1987) 192 Cal.App.3dSupp. 10, 14.) Although the information alleged appellant “did willfully and unlawfully use or be under the influence,” the jury was instructed, and the prosecutor proceeded, only on the theory that appellant used methamphetamine. Defense counsel conceded appellant had ingested the substance, the only question being how long before his blood was drawn. As Enkema’s testimony was sufficient to establish the requisite “current use” proscribed by the statute (see People v. Jones (1987) 189 Cal.App.3d398, 404-406), appellant’s argument fails.
Jurors were instructed: “The defendant is charged in Count Three with using methamphetamine, a controlled substance, in violation of Health and Safety Code Section 11550. [¶] To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully used methamphetamine, a controlled substance, within 48 hours of his arrest. [¶] Someone commits an act willfully when he or she does it willingly or on purpose.”
It would have been better had the verdict form simply referred to use, rather than, as it did, “the offense of USE/UNDER INFLUENCE OF CONTROLLED SUBSTANCE.…” Were we to find that the superfluous reference to being under the influence somehow implicated a theory of liability for which the evidence was insufficient, however, we would find no cause for reversal, as a valid ground for the verdict remains and there is no affirmative indication in the record that the verdict actually rested on the inadequate ground. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
III
JURY INSTRUCTIONS
Appellant makes several claims of instructional error. All concern count I.
A. FAILURE TO INSTRUCT ON LEGAL REQUIREMENTS TO SHOW DRUG-IMPAIRED DRIVING
Appellant says the trial court should have instructed the jury on the legal requirements for showing drug-impaired driving. Failure to do so, he says, allowed the trier of fact to engage in unguided speculation as to what conduct was sufficient to constitute a misdemeanor inherently dangerous to human life, and that this unguided speculation was akin to a permissive but burden-shifting presumption. Although the jury was not instructed that the presence of methamphetamine metabolites in appellant’s blood proved gross negligence, the argument runs, the instructions allowed the prosecutor to argue that using methamphetamine, plus driving onto the shoulder at 35 miles per hour, proved gross negligence, which theory was incorrect as a matter of law and had the effect of relieving the prosecution of its burden of proof. Alternatively, appellant says defense counsel was ineffective for failing to request curative instructions.
“The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) Because appellant was charged in count I with vehicular manslaughter with gross negligence in violation of section 192, subdivision (c)(1) and not with gross vehicular manslaughter while intoxicated in violation of section 191.5, subdivision (a), however, driving under the influence/impaired driving was not an element of the offense. (See People v. Canty, supra, 32 Cal.4th at p. 1278; People v. Verlinde, supra, 100 Cal.App.4th at p. 1159; People v. Bui (2001) 86 Cal.App.4th 1187, 1194; People v. Enriquez, supra, 42 Cal.App.4th at p. 666.)
It is true that the information alleged in count I that appellant “did willfully, unlawfully, feloniously, and without malice, while engaged in the driving of a vehicle in the commission of an unlawful act, to wit, Vehicle Codes [sic] §22107, 22350, 21650, and under the influence of methamphetamine, not amounting to a felony, and with gross negligence, and while in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence, kill” Ralph Absher (italics added), and that this portion of the information was read to the jury. In instructing jurors on the elements of the offense with CALCRIM No. 592 [Gross Vehicular Manslaughter (Pen. Code, §192, subd. (c)(1))], however, the trial court made no reference to being under the influence of any substance or driving while impaired. Appellant says this is precisely the problem: The instructional omission allowed the prosecutor to proceed on a factual theory of gross vehicular manslaughter involving driving under the influence/impaired driving without the jury being instructed on the legal requisites for such a theory and, most significantly, without being instructed that intoxication by itself was insufficient to prove gross negligence. In short, “[t]he prosecution was allowed to argue an improper theory of intoxicated negligence … where no intoxication had been alleged in the first place.”
Contrary to appellant’s interpretation of the record, the prosecutor did not proceed on a theory that appellant drove under the influence or while intoxicated; he specifically told jurors that Enkema was unable to say what the effects of the methamphetamine were, and because with methamphetamine, unlike with alcohol, there were no specific tests to show how much would do what, the case was not charged as a driving-under-the-influence case. The prosecutor expressly stated that he could not prove appellant was under the influence for purposes of driving, but that the methamphetamine ingestion was a factor to consider, asking, “Would a reasonable person ingest methamphetamine before they got in the car?” As we have already explained, the prosecutor did not proceed on an improper theory of negligence by relying on evidence of appellant’s recent methamphetamine use as a factor tending to show gross negligence for purposes of the vehicular manslaughter charge.
Appellant also contends the jury should have been instructed that intoxication, by itself, was insufficient to establish gross negligence. (See People v. Bennett, supra, 54 Cal.3d at p. 1036; People v. Hansen (1992) 10 Cal.App.4th 1065, 1075.) Again, the prosecutor never suggested it was sufficient. Moreover, this court has previously held that such an instruction need not be given on the court’s own motion. (People v. Leffel (1988) 203 Cal.App.3d575, 580-581.) In light of the prosecutor’s remarks during argument, we see no reasonable likelihood jurors were misled on this point, nor did the absence of such an instruction allow them to engage in unguided speculation as to what conduct was sufficient to constitute gross negligence. (See People v. Clair (1992) 2 Cal.4th 629, 663; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Leffel, supra, 203 Cal.App.3dat pp. 581-585.)
For example, at one point during argument, the prosecutor described being pulled over, when he was younger, for weaving, and how he had been weaving because he was driving the car with one finger. He stated: “Now, driving the car with one finger, if I had caused a collision, then that wouldn’t be dispositive as to what my negligence level would have been, but that would have been a factor. Because I’d given myself a disadvantage in driving that other normal ordinary prudent people wouldn’t have. [¶] You go and you take methamphetamine, you got the methamphetamine going through you, you got it going at 280 nanograms per milliliter, you’re giving yourself a disadvantage. You’re not doing what an ordinary and prudent person would do.”
We also reject appellant’s alternative claim that trial counsel was ineffective for failing to request curative instructions. Counsel could reasonably have concluded that, in light of the evidence and theory upon which the prosecutor was proceeding, the instructions adequately advised the jury concerning what constituted gross negligence. Counsel also could reasonably have concluded that an instruction on the requirements for drug-impaired driving, or that the mere fact a defendant drove a motor vehicle while under the influence of some substance was insufficient, could invite speculation and implicitly suggest that appellant’s methamphetamine ingestion was a significant factor, contrary to the thrust of the defense case that it was not significant. (See, e.g., People v. Staten (2000) 24 Cal.4th 434, 459; People v. Freeman, supra, 8 Cal.4th at p. 495.)
B. Misdefinition of Element of Offense and Shifting of Burden of Proof
Jurors were instructed that, in order to prove appellant was guilty of gross vehicular manslaughter, the People had to prove, inter alia, that he committed an infraction while driving a vehicle. The infractions alleged by the People were unsafe turning movement, excessive speed, and driving on the wrong side of the roadway. Jurors were further instructed, in pertinent part: “To prove the defendant committed a violation of driving on the wrong side of the roadway, the People must prove that: [¶] First, the defendant drove a vehicle on a highway; [¶] And second, the defendant drove on the left side of the road. [¶] It is a defense to this section that the defendant was passing another vehicle going in the same direction if such passing was necessary to overtake the other vehicle and was done in a manner that was safe.”
Appellant now contends the trial court erred in so instructing. He says it is not an offense to drive on the left side of the road, and it was not his burden to prove that his doing so was either necessary or safe. He argues that the instruction “illegalized” legal conduct, shifted the burden of proof, and required him to prove a non required justification for passing and, ultimately, his innocence.
Vehicle Code section 21650 provides in pertinent part: “Upon all highways, a vehicle shall be driven upon the right half of the roadway, except as follows: [¶] (a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing that movement.” Appellant’s assertion – that it is not unlawful to drive on the left side of the road but instead is lawful if done in the circumstances designated by the statute – has it backwards: Driving on the left side of the road is unlawful except in the circumstances designated by the statute. (See, e.g., People v. Lewis (1983) 147 Cal.App.3d1135, 1141-1142 [construing Veh. Code, § 21650]; People v. Kiss (1954) 125 Cal.App.2d 138, 141 [construing former Veh. Code, § 525]; People v. Abbott (1950) 101 Cal.App.2d 200, 203-204 [same]; People v. Tucker (1948) 88 Cal.App.2d 333, 340-341 [same].)
The rules specifically governing passing are found in chapter 3, article 3 of the Vehicle Code (Veh. Code, § 21750 et seq.), which is titled “Overtaking and Passing.”
Vehicle Code section 21650 is the successor to former Vehicle Code section 525, which, as originally enacted, read in part: “‘Drive On Right Side of Roadway. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of, and as close as practicable to the right hand curb or edge of, such roadway, except as follows: [¶] ‘(a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement.’” (Historical and Statutory Notes, 66B West’s Ann. Veh. Code (2000 ed.) foll. § 21650, p. 84.)
Appellant is also incorrect in his assertion that it was the prosecution’s “sole and entire burden” to prove unlawfulness of manner, such that appellant did not even need to raise a reasonable doubt. “‘“It is well established that where a statute first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant.”’ [Citations.]” (People v. Neidinger (2006) 40 Cal.4th 67, 75; People v. Spry (1997) 58 Cal.App.4th 1345, 1364, disapproved on other grounds in People v. Martin (2001) 25 Cal.4th 1180, 1192; accord, People v. Fuentes (1990) 224 Cal.App.3d1041, 1045.) Thus, appellant bore the burden of showing that he fell within one of the statutory exceptions. (People v. Hugon (1941) 45 Cal.App.2d Supp. 817, 818.)
The instruction given here was incomplete because it did not identify appellant as the party who had the burden of proving the exception or the level of that proof. (Evid. Code, § 502 ; see People v. Spry, supra, 58 Cal.App.4th at p. 1370.) We need not determine the applicable level of appellant’s burden, because we conclude the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Spry, supra, at p. 1371.) The instruction did not relieve the prosecution of its burden of proving every element of the charged offense beyond a reasonable doubt (see People v. Cox (2000) 23 Cal.4th 665, 676-677); if anything, it was more favorable to appellant than the law warranted precisely because it did not identify him as having any burden in the matter. Jurors were instructed more than once that the prosecution bore the burden of proving guilt beyond a reasonable doubt, and the prosecutor addressed the issue in argument to the jury as if he had the burden of proving the passing was unsafe. The prosecution’s case with respect to all three alleged infractions was overwhelming; significantly, the main issue before the jury was not whether appellant committed a traffic infraction, but whether he did so with negligence and, if so, what level.
Evidence Code section 502 provides: “The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”
Focusing on the instructional phrase “if such passing was necessary,” appellant complains that the instruction placed upon him the burden of showing necessity, a burden not required by law. Not so. Appellant was, as he argues, legally entitled to pass the ice cream truck for no other reason than he wanted to, and the instruction did not suggest otherwise. It did not require a showing that it was necessary (as opposed to desirable) for him to pass, but only that passing was necessary to overtake the other vehicle. In other words, if, for example, the ice cream truck had pulled over to the curb so that appellant could have remained on the right-hand side of the road while passing, it would not have been permissible for him to drive on the left side of the roadway. The evidence at trial presented no conflict concerning whether appellant needed to drive on the left side of the road in order to overtake the truck; instead, the issue before the jury was whether the passing was done in a safe manner.
Last, we reject the notion that the error was compounded by the giving of CALCRIM No. 3403, which defines the necessity defense and which defense counsel requested. As given to the jury, that instruction began: “The defendant is not guilty of the crimes charged – of the crime charged in Count Two if he acted because of legal necessity.” (Italics added.) The necessity defense was argued solely and expressly with respect to count II. Jurors are presumed to be able to understand and to follow instructions (People v. Yeoman, supra, 31 Cal.4th at p. 139), and we see absolutely no reason to believe they were confused concerning the applicability of the necessity defense.
C. Failure to Instruct on Burden of Proof Applicable to Defense of Accident
“All persons are capable of committing crimes except [inter alia] [p]ersons who committed the act … through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” (§ 26, subd. Five.) Accordingly, homicide is excusable “[w]hen committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.” (§ 195, subd. 1.)
Appellant relied on the defense/excuse of accident. Prior to defining the specific charged and lesser offenses, the trial court instructed the jury that, if a person killed with a legally valid excuse or justification, the killing was lawful and the person did not commit a crime. Pursuant to CALCRIM No. 510, the trial court proceeded to tell jurors:
“The defendant is not guilty of manslaughter if he killed someone as a result of an accident or misfortune. Such a killing is excused, and therefore is not unlawful, if:
“First, the defendant was doing a lawful act in a lawful way;
“Second, the defendant was acting with usual or ordinary caution;
“And third, the defendant was acting without any unlawful intent.
“A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar circumstances. Same or similar situation.
“The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of manslaughter.” (Italics added.)
The court then instructed the jury on gross vehicular manslaughter as charged in count I, the lesser included offense of vehicular manslaughter with ordinary negligence, and how to approach greater and lesser offenses and the resulting multiple verdict forms. Before turning to counts II through IV, the trial court gave CALCRIM No. 3404, to wit: “The defendant is not guilty of gross vehicular manslaughter or the lesser offense of vehicular manslaughter with ordinary negligence if he acted accidentally without negligence. You may not find the defendant guilty of gross vehicular manslaughter unless you are convinced beyond a reasonable doubt that he acted with gross negligence. [¶] Gross negligence is defined in the earlier instructions.”
Appellant now complains that the trial court deprived him of due process by failing to instruct on the burden of proof applicable to affirmative defenses. He confusingly says CALCRIM No. 510 did not cure the error because “the burden of going forward with a defense and the burden of proof of that defense by definition operate as an exception to the general rule.” If CALCRIM No. 510 were sufficient, the argument runs, California law would never impose a requirement to instruct on the defendant’s burden.
A trial court is required, even without request, to instruct the jury on the allocation and weight of the applicable burdens of proof. (Evid. Code, § 502; People v. Mower (2002) 28 Cal.4th 457, 483-484; People v. Figueroa (1986) 41 Cal.3d 714, 721.) “When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of that fact. [Citation.] This is so because the defense goes directly to guilt or innocence.” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) “The claim that a homicide was ‘committed by accident and misfortune’ (§ 195), is such a defense because it ‘amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.’ [Citations.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 370.)
Where a defendant relies on excuse or justification, “the jury must be instructed on the defense and the prosecution bears the burden of disproving it beyond a reasonable doubt.” (People v. Frye (1992) 7 Cal.App.4th 1148, 1159.) In our view, the instructions correctly conveyed this to the jury. (See People v. Kelly, supra, 1 Cal.4th at p. 525.) In reaching this conclusion, we do not view CALCRIM No. 3404 “in ‘artificial isolation’; instead, it must be evaluated ‘in the context of the overall charge.’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 823-824; Estelle v. McGuire (1991) 502 U.S. 62, 72.) Significantly, CALCRIM No. 510 was not merely a recitation or reiteration of the prosecution’s general burden of proving every element of an offense beyond a reasonable doubt, but instead set forth the prosecution’s specific burden, where the excuse of accident is involved, of disproving accident beyond a reasonable doubt. Under the circumstances, additionally instructing jurors that appellant need only raise a reasonable doubt as to the excuse of accident would simply have informed jurors of the same requirement in a different way. Because both CALCRIM Nos. 510 and 3404 referred to accident, a reasonable juror would have understood the burden was on the prosecution to disprove accident beyond a reasonable doubt. (See People v. Kelly (2007) 42 Cal.4th 763, 790 [where trial court used same terms consistently, it was not reasonably likely jurors would have believed different definitions applied in different instances]; People v. Wilson (1992) 3 Cal.4th 926, 943 [reasonable juror would have understood relevant language of specific instructions must be considered in conjunction with reasonable doubt standard]; People v. Black (1951) 103 Cal.App.2d 69, 79 [instruction sufficient where it told jurors prosecution must prove beyond a reasonable doubt that criminal agency was cause of death, that such proof must necessarily exclude theory of accident, and that reasonable doubt as to whether death was accidental must be resolved in defendant’s favor].) Nothing more was needed.
The fact the jury was instructed, pursuant to CALCRIM No. 3403, that appellant had the burden of proving the defense of necessity by a preponderance of the evidence, does not alter our conclusion. As previously described, jurors were expressly told the defense applied to count II. The prosecutor argued the defense only as to that count, and also told jurors the defense was different and that appellant had to prove its elements. The prosecutor then discussed each of those elements. A reasonable juror simply would not have confused necessity and accident.
D. Instructions on Distinction Between Ordinary and Gross Negligence
Appellant contends the instructions on the distinction between ordinary and gross negligence were vague and misleading, and deprived him of a fair trial. He says the instructions failed to provide the jury with adequate means for distinguishing between the two degrees of negligence, in part because “any use of a motor vehicle is inherently dangerous in all circumstances, so that the foreseeable harm (and hence the drivers’ [sic] actual or imputable knowledge) is the same in all cases where a vehicle is used.” He says jurors could not properly determine the degree of negligence, if any, involved “on other than an arbitrary basis given its instructions,” and he posits it is reasonably probable jurors were confused “and at a loss” due to the ambiguity in the instructions.
Pursuant to CALCRIM No. 592, jurors were instructed, in pertinent part:
“The defendant is charged in Count One with vehicular manslaughter with gross negligence, in violation of Penal Code Section 192(c)(1).
“To prove that the defendant is guilty of gross vehicular manslaughter, the People must prove that:
“First, the defendant drove a vehicle;
“Second, while driving that vehicle, the defendant committed an infraction;
“Third, the defendant committed the infraction with gross negligence;
“And fourth, the defendant’s grossly negligent conduct caused the death of another person. [¶] … [¶]
“Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when either he or she acts in a reckless way that creates a high risk of death or great bodily injury, or a reasonable person would have known that acting in that way would create such a risk.
In reality, the requirements should be read in the conjunctive, not the disjunctive. The requirements were stated correctly in the written instructions given to the jury, however, and those instructions control. (People v. Wilson (2008) 44 Cal.4th 758, 803.) Moreover, the prosecutor correctly stated the requirements in his argument.
“In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinary careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”
Jurors were told that the People had the burden of proving beyond a reasonable doubt that appellant committed gross vehicular manslaughter, and if the People did not meet that burden, jurors were to find appellant not guilty of that crime and then consider whether he was guilty of the lesser crime of vehicular manslaughter with ordinary negligence. Pursuant to CALCRIM No. 593, jurors were told, in pertinent part:
“Vehicular manslaughter with ordinary negligence is a lesser crime than gross vehicular manslaughter. To prove that the defendant is guilty of vehicular manslaughter with ordinary negligence, the People must prove that:
“First, the defendant drove a vehicle;
“Second, while driving that vehicle the defendant committed an infraction;
“Third, the defendant committed an infraction with ordinary negligence;
“And fourth, the defendant’s negligent conduct caused the death of another person. [¶] … [¶]
“Again, the differences [sic] between this offense and the charged offense of gross vehicular manslaughter is the degree of negligence required. I’ve already defined gross negligence for you.
“Ordinary negligence, on the other hand, is the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else.
“A person is negligent if he or she does something that a reasonably careful person would not do in the same situation.”
In reviewing purportedly erroneous instructions, “‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.] In conducting this inquiry, we are mindful that ‘“a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; Estelle v. McGuire, supra, 502 U.S. at p. 72.) Moreover, “[i]n light of the United States Supreme Court’s teaching that a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hairsplitting’ [citation] during the deliberation process” (People v. Huggins (2006) 38 Cal.4th 175, 193), we also consider the arguments of counsel in assessing the probable impact of the challenged instruction or instructions on the jury (ibid.; People v. Young (2005) 34 Cal.4th 1149, 1202).
We perceive appellant’s argument to be based on a hyper technical reading of the instructions in which he undertakes an unpersuasive exercise in semantics. (See People v. Stone (2008) 160 Cal.App.4th 323, 331.) In our view, a reasonable juror would have understood the governing law and, specifically, the distinction between gross and ordinary negligence (see People v. Dieguez (2001) 89 Cal.App.4th 266, 276; People v. Hansen (1997) 59 Cal.App.4th 473, 482), especially in light of the arguments of both counsel (see People v.Dieguez, supra, at p. 276 People v. Pike (1988) 197 Cal. App.3rd 732, 742-743). Accordingly, appellant was required to request an additional or clarifying instruction if he believed CALCRIM Nos. 592 and 593 needed elaboration. (People v. Maury, supra, 30 Cal.4th at p. 426; People v. Guiuan (1998) 18 Cal.4th 558, 570.) He made no such request, undoubtedly because he recognized that the standard instructions and the arguments of counsel adequately conveyed the distinction between the two forms of negligence. (See People v. Carpenter (1997) 15 Cal.4th 312, 391-392, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) His assessment was correct: Jurors expressed no confusion concerning the concepts.
IV
MOTION FOR NEW TRIAL OR MODIFICATION OF VERDICT
Appellant moved for a new trial or, alternatively, a “judgment N.O.V.,” on the ground that the evidence was insufficient to establish gross vehicular manslaughter. The People opposed the motion. Following argument, the trial court denied the motion, stating: “Well, I do acknowledge that I have discretion to reduce the matter to substitute a finding of simple negligence as opposed to gross negligence or to return the matter back to trial again. [¶] In this case I believe the jury didn’t find there to be any mitigating circumstances based on concern for children of the schoolyard or some sort of other factor that may have distracted his attention in an understandable fashion. I believe the jury had all of the information and just simply didn’t believe the evidence submitted by the defense to explain why the accident might have occurred without gross negligence. [¶] And I don’t see any basis to use my discretion to vary from that finding or to reduce the matter to simple negligence or to do anything other than affirm the jury’s findings.…”
Appellant now contends the trial court’s ruling was erroneous for two reasons. First, he says, the prosecution’s improper theory of the case, together with the court’s mis instructions, rendered the jury’s verdict contrary to law. Second, there was insufficient proof of gross vehicular manslaughter.
“In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court ‘should [not] disregard the verdict … but instead … should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524.)
The first ground asserted on appeal borders on sophistry. As the sole basis asserted by appellant in the trial court was that of insufficiency of the evidence, the trial court was never asked to exercise its discretion with respect to purported legal errors. We certainly cannot say it abused its discretion by rejecting a claim of error that was never made. Indeed, it arguably lacked discretion to rule on such purported errors. (See People v. Masotti (2008) 163 Cal.App.4th 504, 507, 508.) In any event, appellant has “presented [the foregoing] claims on appeal, independent of his new trial claim, and we have found them to be without merit and rejected them. We also reject his claim that the trial court abused its discretion in denying his new trial motion [or motion for modification of the verdict] on these grounds.” (People v. Panah, supra, 35 Cal.4th at p. 490.)
Although the prosecutor referred to the instructions given jurors with respect to the distinction between ordinary and gross negligence, he did so to illustrate why the jury’s conclusion was, in his view, correct. At no time did appellant challenge the correctness either of the jury instructions or the prosecutor’s theory of the case.
V
CUMULATIVE ERROR
Appellant says the cumulative impact of the errors committed by the trial court mandates reversal. We disagree. To the extent errors occurred, they did not prejudice appellant, either individually or collectively, under any applicable standard. (See People v. Hill (1998) 17 Cal.4th 800, 844; People v. Osband (1996) 13 Cal.4th 622, 702; People v. Robertson (1989) 48 Cal.3d 18, 63.)
VI
PRIOR CONVICTION/STRIKE ADMISSIONS
The information alleged, inter alia, pursuant to section 667, subdivisions (a) and (d), that appellant was convicted, on or about June 29, 1990, in Santa Clara County Superior Court docket number 137784, of a serious felony within the meaning of section 1192.7, subdivision (c), to wit, assault with a deadly weapon, a violation of section 245, subdivision (a)(1). On the day set for court trial on the various prior conviction allegations, the prosecutor stated that the People would be moving to strike one of the section 667.5, subdivision (b) allegations, and that appellant would be admitting the remaining priors. Defense counsel confirmed that appellant would admit the allegations subject to a post trial Romero motion. This followed:
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
“THE COURT: Okay. So as to the remaining priors, then, listed here [in the information] that’s a strike, offense pursuant to 667(d), Docket 137784; a five-year prison prior, pursuant to 667(a), that same docket number; and a one-year prison prior, pursuant to 667.5(b), Docket 204221.
“As to those three priors, Mr. Callahan, do you understand that you do have a right to have a speedy and public trial in front of a Judge, jury having been previously waived, to contest those priors.
“At your trial you would have a right to be silent, not to say anything to incriminate yourself; the DA would have to prove the case, the priors, beyond a reasonable doubt; you would also have a right to have the witnesses against you and the documents, whatever evidence would be used, to come to court and your attorney and – if there was [sic] live witnesses, you could see and hear their testimony under oath, your attorney would be able to question them; and you would have a right to present any witnesses or evidence that you want to present any defenses; and I would order any witnesses or documents you need for that purpose to be here at no cost to you.
“By admitting the priors, you are giving up each of those rights. Do you understand and give up each of those rights?
“THE DEFENDANT: Yes.
“THE COURT: And do you admit or deny the strike prior pursuant to 667(d) alleged as Docket 137784? [¶] … [¶]
“THE DEFENDANT: Admit.
“THE COURT: Okay. And do you admit or deny that same prior alleged pursuant to 667(a)?
“Do you admit or deny for that purpose?
“THE DEFENDANT: I admit.”
Prior to sentencing, appellant unsuccessfully moved to vacate the prior strike conviction pursuant to Romero. Defense counsel further argued for imposition of the mitigated term, noting that it would be doubled due to the strike. Appellant made no other objection either to the doubling of the term pursuant to the three strikes law or imposition of a five-year enhancement pursuant to section 667, subdivision (a), instead claiming only that the time credits shown in the probation officer’s report were incorrect.
Appellant personally made this claim.
Appellant now says his admissions of the prior assault conviction must be set aside because (1) he was inadequately advised of the penal consequences of such admissions and (2) the record contains no factual basis therefor.
“When a plea of guilty is entered by a defendant, he must be admonished about three constitutional rights: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one’s accusers; in addition, the defendant must waive those rights knowingly and voluntarily. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122; People v. Howard (1992) 1 Cal.4th 1132, 1176-1179.) The same procedures must be employed for admission of prior convictions for sentencing purposes. (In re Yurko (1974) 10 Cal.3d 857, 863.) In addition to admonition of these constitutional rights our Supreme Court has declared ‘as a judicially declared rule of criminal procedure’ that an accused is entitled to be advised: (1) of any habitual criminal consequences, (2) of the precise increase in term which might be imposed, and (3) of the effect on eligibility for parole. (Id. at p. 864.) The failure to secure an express waiver of each enumerated right is, however, not reversible per se. (People v. Howard, supra, 1 Cal.4th at pp. 1177-1179.) The test is whether or not the record indicates that the admission was voluntary and intelligent ‘under the totality of the circumstances.’ (Id. at p. 1178.)” (People v. Witcher (1995) 41 Cal.App.4th 223, 226-227.)
The record here indicates appellant’s admissions were voluntary and intelligent under the totality of the circumstances. It is true that, although the trial referred to a “five-year prison prior” and a “strike prior,” the court failed to advise appellant directly of the penal consequences of his admissions. This error was forfeited by appellant’s failure to object at or before sentencing, however. (People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.) The People’s sentencing statement discussed sentence lengths calculated with the applicable enhancements, appellant’s written Romero request discussed the strike, and the People’s opposition to the Romero request discussed the consequences of the section 667, subdivision (a) prior. “Had the imposition of sentence on the enhancement allegations ‘come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court.’ [Citations.]” (People v. Wrice, supra, at p. 771.) The record amply demonstrates appellant himself knew how to do so, as he had no problem raising and addressing the purportedly incorrect recommendation of the probation officer with respect to an award of time credits.
It is also true the trial court made no inquiry concerning the factual basis for the admissions. However, appellant fails to convince us that, where admission of a prior conviction allegation is concerned, such a requirement exists. In all of the cases he cites as authority, the defendant was entering a conditional (negotiated) plea; hence, section 1192.5 placed a duty upon the trial court to establish a factual basis for that plea. (See, e.g., People v. Holmes (2004) 32 Cal.4th 432, 435-436; People v. Willard (2007) 154 Cal.App.4th 1329, 1332-1335.) The California Supreme Court has held, however, that no duty to conduct a factual-basis inquiry exists where the plea is unconditional. (People v. Hoffard (1995) 10 Cal.4th 1170, 1180-1184 [no duty to conduct inquiry into factual admission of § 1203.066, subd. (a)(9) allegation].)
Section 1192.5 provides, in pertinent part: “Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, … the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it. [¶] Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.” (Italics added.)
In the present case, appellant’s admissions were unconditional. Section 1192.5 thus does not apply, and we are aware of no authority mandating inquiry into the factual basis for the admissions under the circumstances.
Although the prosecutor dismissed one of the section 667.5, subdivision (b) allegations, he did so because the law did not permit a section 667, subdivision (a) and section 667.5, subdivision (b) enhancement to arise from the same prison commitment, not because of any plea agreement.
DISPOSITION
The judgment is affirmed.
WE CONCUR, Wiseman, J., Gomes, J.