Opinion
H044520
10-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CORRAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1515832)
I. INTRODUCTION
Defendant Joseph Corral appeals after a jury convicted him of second degree murder (Pen. Code, § 187) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). The trial court sentenced defendant to an indeterminate prison term of 15 years to life.
All further unspecified section references are to the Penal Code.
On appeal, defendant challenges the jury instructions on both offenses, the sufficiency of the evidence to support both convictions, and the admission of evidence that he refused to consent to a blood draw. Defendant also contends the prosecutor engaged in prejudicial misconduct. We will affirm the judgment.
II. BACKGROUND
The charges against defendant stemmed from a vehicle crash that occurred on July 10, 2015, which caused the death of Alan Wright. Defendant was the driver of the vehicle; Wright was the front passenger. Witnesses reported seeing defendant speeding before the crash, and there was evidence defendant was under the influence of PCP (phencyclidine).
At trial, defendant testified that the crash occurred when he suffered a cramp in his leg and that he had last used PCP five days earlier. Before trial, defendant made statements indicating that Wright had been smoking PCP in the vehicle.
A. The Crash
Wright had been friends with defendant "for a number of years" and had been living with defendant for a few months prior to the incident. Wright owned a white Chevrolet Silverado pickup truck, which defendant sometimes drove.
On the morning of July 10, 2015, about 10:45 a.m., defendant was driving Wright's truck, with Wright in the front passenger seat. A neighbor noticed that defendant appeared to be "limping very badly."
Later that morning, a driver at the intersection of Ruby Road and Quimby Road noticed a white truck "that seemed to have lost control." The truck hit some cones, hit the curb, and kept going. The truck was traveling at a high rate of speed as it proceeded through the intersection and crossed the center median twice. The truck hit a retaining wall and flipped over into a yard. The truck's engine then caught on fire.
Another driver in the area saw a white truck go "flying" by and then crash into the retaining wall. Her passenger also saw the white truck traveling at a "fast speed" and saw the truck driving on the wrong side of the road before it crashed into the retaining wall.
A passenger in yet another vehicle saw a white truck that was "revving up" and "going way faster than it should have been in that area." He saw the truck "catch air" and then crash into the retaining wall.
The posted speed limit in the area was 35 miles per hour.
Police officers arrived at the scene about 10:53 a.m. The white truck was on fire, and firefighters were attempting to extinguish the fire. Defendant was still in the driver's seat, and Wright was "slumped over" in the passenger seat, being treated by paramedics. Wright, who had been wearing a seatbelt at the time of the crash, was pronounced dead at the scene. Defendant was taken to the hospital.
B. Defendant's Blood Draw
City of San Jose Police Officer Jaime Almaraz went to the hospital, where he saw defendant being carried out of an ambulance on a gurney. After defendant was examined and stabilized, Officer Almaraz spoke with him. Defendant was not under arrest at the time, but he appeared to be angry when the officer spoke with him. He was also angry and aggressive with the hospital staff. Defendant claimed he did not remember being in an accident and that he "was never driving a car." Officer Almaraz believed defendant was "under the influence of something."
Officer Almaraz said he wanted to have defendant's blood drawn, but defendant said, "Hell, no. You can't have my blood." Defendant said, "I am refusing to give a chemical sample." When the officer explained that he would have to get a warrant if defendant did not consent, defendant responded, "Go get a warrant. I'm not giving you anything."
Officer Almaraz initiated the warrant process, and defendant's blood was drawn at 2:43 p.m. Defendant was cooperative during the blood draw.
No alcohol was found in defendant's blood, but tests revealed the presence of PCP, a "psychoactive" drug, as well as morphine metabolites, which indicated defendant had also used morphine.
A person who has used PCP will experience "[t]he main phase of the high" for about four to six hours. PCP can cause a person to have a "sense of invulnerability to danger." PCP can also cause aggression and combativeness. Erratic and high-speed driving are consistent with PCP use.
Due to its "half-life," PCP can be detected in a person's blood for up to a week after it is consumed.
C. Vehicle Inspection
The truck was inspected. There was substantial damage to the truck. The inspector did not find anything that would have affected the truck's operation prior to the collision. The truck's sensory diagnostic module (SDM) indicated that the truck had been traveling at 103 miles per hour five seconds before the crash and 93 miles per hour at the time of the crash. The accelerator had been "floored" during the five seconds prior to the crash, but the brake switch had been activated one second earlier.
D. Defendant's Prior DUI Education
Defendant suffered seven prior convictions for driving under the influence of PCP: in September 1983, August 1985, November 1985, March 1986, December 1987, May 1996, and January 2006.
In January 2006, a complaint advised defendant that being under the influence of alcohol or drugs "impairs your ability to safely operate a motor vehicle" and "is extremely dangerous to human life." The advisement further stated, "If you continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, you can be charged with murder." The same advisement was provided to defendant during his change of plea hearing in January 2006.
Defendant had taken prior court-ordered DUI classes, including a first offender DUI program and a multiple offender DUI program. Both programs aim to teach people not to drive while under the influence of alcohol or drugs.
E. Defense Case
Defendant testified that on July 10, 2015, he was "going to do a side job" that involved removing grass and pouring concrete. He generally worked through a union, but about two months earlier, he had fractured his leg in three different places near the ankle. He sometimes wore a hard plastic medical boot that came up to his knee, but he was not wearing the boot that morning because he was trying to get back to his regular job and did not want his boss to know about his injury. Defendant also did not want to drive with the boot on, because he thought it was illegal.
Defendant picked up Wright to help him with the job. As defendant drove, his ankle started to hurt, and then his leg cramped up. The cramp caused his leg to straighten out and "hit the gas." Wright tried to help defendant by grabbing the steering wheel while defendant bent over and tried to move his leg. That was the last thing defendant remembered.
Defendant had last used PCP on July 5, 2015. He did not remember refusing to take a blood test at the hospital.
Defendant admitted that in 2013, he had suffered prior convictions for vehicle theft and possession of drugs for sale. Defendant also admitted that he had suffered numerous convictions for driving under the influence of PCP and that he had taken classes that taught him about the dangers of driving under the influence. He knew that if he drove a vehicle while under the influence of PCP, he could kill someone.
After his arrest, defendant spoke with someone in jail who suggested he could "beat this case" by claiming that Wright had "knocked [defendant] out" while on PCP, causing the crash. During a subsequent phone call with his sister, defendant said, "I don't remember a fucking thing. All I remember is leaving the house and then—and then he fucking lit one of those things. And I kept telling him, 'Shut it off, fucker. Man this fucking shit smells strong.' And that's all I remember." Defendant was referring to PCP.
In another recorded phone call from jail, defendant told his sister he was "not going to learn" if he only did "a year or six months." When his sister remarked that he was "being all honest and shit," defendant said he was "keeping it real."
F. Convictions and Sentence
Defendant was charged with murder (count 1; § 187) and gross vehicular manslaughter while intoxicated (count 2; § 191.5, subd. (a)). The jury found him guilty of both offenses. The trial court sentenced defendant to an indeterminate prison term of 15 years to life for the murder conviction and stayed the term for the gross vehicular manslaughter conviction.
III. DISCUSSION
A. Jury Instructions
Defendant challenges the jury instructions on murder and gross vehicular manslaughter while intoxicated (CALCRIM Nos. 520 & 590), contending they "offered no meaningful distinction" between the mental states required for each crime. Defendant claims the jury instructions violated his Fourteenth Amendment due process rights and his Sixth Amendment right to have each element of the crimes proven beyond a reasonable doubt.
The Attorney General argues that defendant forfeited this claim and that the jury instructions correctly stated the law.
1. Proceedings Below
The prosecutor filed a motion requesting modifications to CALCRIM No. 520, the instruction on murder. Defendant objected to the changes, asserting that it would be confusing and unhelpful to modify the standard instruction. The trial court agreed not to modify CALCRIM No. 520.
The People's requested modifications to CALCRIM No. 520 included a definition of "[l]ikely to happen," a definition of "deliberately," guidance on determining whether defendant acted with implied malice, and guidance on determining whether defendant "deliberately acted with conscious disregard for human life."
The parties both agreed on the language to be used in CALCRIM No. 590, the instruction on gross vehicular manslaughter while intoxicated.
Pursuant to CALCRIM No. 520, the jury was instructed that in order to prove defendant was guilty of murder, the People had to prove: "(1) The defendant committed an act that caused the death of Allen Wright; and [¶] (2) When the defendant acted, he had a state of mind called malice aforethought."
The murder instruction further explained: "There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. The defendant acted with implied malice if: [¶] (1) He intentionally committed an act; [¶] (2) The natural and probable consequences of the act were dangerous to human life[;] [¶] (3) At the time he acted, he knew his act was dangerous to human life; and [¶] (4) He deliberately acted with conscious disregard for human life. . . ."
Pursuant to CALCRIM No. 590, the jury was instructed that in order to prove defendant was guilty of gross vehicular manslaughter while intoxicated, the People had to prove: "(1) The defendant drove under the influence of a drug; [¶] (2) While driving that vehicle under the influence of a drug, the defendant also committed a misdemeanor, or an infraction, or otherwise lawful act that might cause death with gross negligence; [¶] (3) The defendant committed the misdemeanor or infraction or otherwise lawful act that might cause death with gross negligence; and [¶] (4) The defendant's grossly negligent conduct caused the death of Allen Wright." The instruction specified that the "act" being alleged was speeding.
The gross vehicular manslaughter instruction then explained: "Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: [¶] (1) He acts in a reckless way that creates a high risk of death or great bodily injury; and (2) A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with gross negligence when the way he acts is so different from the way an ordinarily careful person would act in the same situation, that his act amounts to disregard for human life or indifference to the consequences of that act."
2. Analysis
Defendant contends the jury instructions specified "identical" mental state requirements for implied malice murder and gross vehicular manslaughter while intoxicated. He notes that CALCRIM No. 520 requires a finding that the defendant "deliberately acted with conscious disregard for human life" and that CALCRIM No. 590 requires a finding that the defendant committed an act that "amount[ed] to disregard for human life or indifference to the consequences of that act." Defendant asserts that the foregoing concepts are "utterly indistinguishable" and thus that the instructions were "hopelessly confusing for the jury."
Although defendant failed to request any modification of the instructions in the trial court, which would normally result in forfeiture on appeal (see People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001), we will address his claim in order to determine whether—as defendant claims in his reply brief—the asserted instructional error affected his substantial rights (see § 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249).
Defendant contends the instructions failed to provide the distinction between implied malice murder and gross negligence identified by People v. Watson (1981) 30 Cal.3d 290 (Watson). In Watson, the California Supreme Court explained that a person acts with gross negligence when he or she exercises "so slight a degree of care as to raise a presumption of conscious indifference to the consequences," whereas a person acts with implied malice when he or she knows that his or her conduct endangers the life of another person and yet "acts deliberately with conscious disregard for life. [Citations.]" (Id. at p. 296.) The Watson court noted that although "these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. [Citation.]" (Ibid.)
The Watson court explained that "different tests" should be applied in determining whether someone acts with gross negligence or implied malice. (Watson, supra, 30 Cal.3d at p. 296.) "A finding of gross negligence is made by applying an objective test: 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.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (Id. at pp. 296-297.)
Having carefully examined the full jury instructions, we find no " 'reasonable likelihood that the jury understood the instructions in a manner that violated the defendant's rights.' [Citation.]" (People v. Smith (2008) 168 Cal.App.4th 7, 13.) For implied malice murder, CALCRIM No. 520 specified that the People had to prove that defendant had a particular "state of mind," which included knowledge that his act was dangerous to human life, and that he "deliberately acted with conscious disregard for human life." For gross vehicular manslaughter while intoxicated, CALCRIM No. 590 specified that the People had to prove that defendant acted in a manner that recklessly created a high risk of death or great bodily injury, and that a reasonable person "would have known that acting in this way would create such a risk." The subjective standard applicable for implied malice (the "state of mind" requiring knowledge of the risk to human life) was clear, as was the objective standard required for gross vehicular manslaughter while intoxicated (reckless conduct that a reasonable person would have known created a risk to human life). Thus, the instructions conveyed the distinction between implied malice murder and gross negligence identified by Watson. We find no instructional error.
B. Sufficiency of the Evidence
Defendant contends neither of his convictions is supported by substantial evidence because the evidence showed that he "did not intentionally become intoxicated," but rather "became intoxicated from Mr. Wright's second-hand PCP smoke."
The Attorney General asserts that both of defendant's convictions are supported by substantial evidence.
1. Standard of Review
The standard of review for an appellate challenge to the sufficiency of the evidence to support a conviction is well established. "The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
"The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation] . . . . An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396 (Maury).)
2. Second Degree Murder Conviction
Defendant contends that the prosecution presented no evidence that he "intentionally became intoxicated and drove" despite knowing such conduct was dangerous to others. He acknowledges that if there was evidence that he had willfully consumed PCP to the point of intoxication with the intent to drive a vehicle afterwards, he reasonably could have been found to have exhibited a conscious disregard of the safety of others. (See Watson, supra, 30 Cal.3d at pp. 300-301 [a person who has willfully consumed alcohol " 'to the point of intoxication' " with intent to " 'thereafter . . . operate a motor vehicle' " " 'reasonably may be held to exhibit a conscious disregard of the safety of others' "].) However, defendant asserts, the prosecution provided no direct evidence that he willfully used PCP before deciding to drive. Defendant points out that according to his own testimony, he last used PCP five days before the collision and that according to his recorded telephone call, Wright had used PCP in the car just before the collision, which could have caused defendant to be affected by the drug.
The jury was not required to believe defendant's self-serving testimony and statements. (See People v. Silva (2001) 25 Cal.4th 345, 369 ["A rational trier of fact could disbelieve those portions of defendant's statements that were obviously self-serving"].) Instead, the jury reasonably could have found that defendant was under the influence of PCP because he willfully consumed PCP before driving. Defendant's erratic and high-speed driving strongly suggested he was under the influence of a drug such as PCP, which can cause a person to have a "sense of invulnerability to danger." Defendant's behavior at the hospital was consistent with being under the influence of PCP, which can cause a person to become aggressive and combative. Defendant also had a long history of convictions of driving while under the influence of PCP. Defendant told his sister that Wright had been the one using PCP only after defendant was advised that he could "beat this case" by claiming that Wright had been on PCP. On this record, the jury could reasonably have determined that it was implausible that defendant had "consumed PCP unintentionally." Based on the circumstantial evidence of defendant's actions, statements, and prior convictions, the jury could have logically inferred that defendant had become intoxicated by willfully consuming PCP before driving. (See Maury, supra, 30 Cal.4th at p. 396.)
3. Gross Vehicular Manslaughter While Intoxicated Conviction
Defendant's challenge to the evidence supporting his conviction of gross vehicular manslaughter while intoxicated is nearly identical to his argument concerning his murder conviction: he contends there was insufficient evidence to support a finding that he acted with gross negligence, because the evidence showed that he drove "after unintentionally smoking PCP."
For the reasons stated above, the jury was not required to find that defendant "did not intend to consume any narcotics before driving." Rather, based on the evidence of defendant's erratic and high-speed driving, his aggressive and combative behavior, the presence of PCP in his blood, his prior convictions, and the evidence that he had fabricated a defense, the jury could reasonably have found that defendant willfully consumed PCP before driving.
C. Evidentiary Ruling
Defendant contends the trial court erred by admitting evidence that he refused to consent to a blood draw. Defendant argues that by refusing to consent, he was "exercis[ing] his Fourth Amendment right against warrantless search and seizure of his person," and that it was improper for his exercise of a constitutional right to be used against him at trial.
The Attorney General argues that defendant forfeited this claim by failing to assert a constitutional objection in the trial court, that the trial court's ruling did not violate defendant's Fourth Amendment rights, and that any error was harmless.
1. Proceedings Below
The prosecutor's motions in limine included a motion to admit the statements defendant made to "the police officer who first contacted him at the hospital." The motion noted that defendant "refused to provide a blood sample."
At the hearing on motions in limine, the trial court clarified that the statements at issue were "I was never driving a car" and "I am refusing to give a chemical sample." The prosecution wanted to introduce the first statement "as a patent lie" in light of the fact that defendant was "extricated from the vehicle in the driver's position" and also as evidence that he was "trying to avoid the responsibility," i.e., as "an admission of his guilt on some level." The prosecution also sought to introduce defendant's refusal to provide a chemical sample to show defendant's consciousness of guilt, arguing that such refusal was "different [than] someone invoking their right to remain silent."
Defendant's trial counsel argued that defendant's statements at the hospital were unreliable because of his injuries and pain medication. Defendant's trial counsel also argued that, "as it relates to the refusal to take the sample," defendant was "exercising his right" and that it should not "be held against him."
The trial court noted it had "considered [Evidence Code section] 352" and ruled that both of defendant's statements were admissible in the People's case-in-chief.
The trial court later instructed the jury: "The law requires that any driver who has been arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence. [¶] If the defendant refused to submit to such a test after a peace officer asked him to do so and explained the test['s] nature to the defendant, then the defendant's conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant refused to submit to such a test, it is up to you to decide the meaning and importance of a refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself."
During argument to the jury, the prosecutor asserted that defendant's refusal to submit to a blood test showed that he was "aware of his guilt." The prosecutor argued that someone who was "stone cold sober" would not refuse to give a blood sample and would not be uncooperative with the police. The prosecutor argued that by demanding the police get a warrant, defendant was trying to delay the blood test in hopes of getting the PCP "out of his blood system so he could get away with it."
2. Analysis
Preliminarily, we find that defendant did not forfeit his Fourth Amendment claim by failing to specify that basis for his objection in the trial court. "An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. [Citations.] In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. [Citations.]" (People v. Scott (1978) 21 Cal.3d 284, 290.)
The Fourth Amendment's reasonableness and warrant requirements apply to blood draws conducted during investigations for driving under the influence. (Missouri v. McNeely (2013) 569 U.S. 141, 148.) Thus, defendant analogizes to cases holding that a defendant's invocation of his Fourth Amendment rights cannot be "used for the purpose of showing he had something to hide, or, in other words, demonstrating his consciousness of his guilt" because that would punish the defendant "for asserting his right to have the officer obtain a warrant." (People v. Wood (2002) 103 Cal.App.4th 803, 809; see People v. Keener (1983) 148 Cal.App.3d 73, 79.)
The Attorney General asserts that defendant had no Fourth Amendment right to refuse the blood draw because of California's implied consent law, which provides that "[a] person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153 [of the Vehicle Code]." (Veh. Code, § 23612, subd. (a)(1)(B).)
Both parties note that in People v. Arredondo (2016) 245 Cal.App.4th 186, review granted June 8, 2016, S233582, the California Supreme Court is considering whether the Fourth Amendment is violated by a warrantless blood draw following an arrest for driving under the influence, in light of California's implied consent law.
We need not decide whether defendant's refusal to consent to a warrantless blood draw was properly admitted to show his consciousness of guilt, because even assuming error, it was not prejudicial under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 837.) First, there was other evidence showing defendant's consciousness of guilt, including the jail calls indicating that defendant had been instructed to blame Wright for the collision and the jail call in which defendant admitted he was "not going to learn" if he only got a light sentence. Second, the evidence of defendant's guilt was very strong. PCP was found in defendant's blood after the crash. Numerous witnesses described defendant's very erratic and high-speed driving, which strongly suggested he was under the influence of a drug such as PCP, and witnesses described defendant as being aggressive and combative at the hospital—another indication he was under the influence of PCP. Defendant also had a long history of convictions of driving while under the influence of PCP. After considering the entire record, we can determine "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman, supra, 386 U.S. at p. 24) and that there is no "reasonable probability" that a result more favorable to the defendant would have occurred absent the asserted error (People v. Watson, supra, 46 Cal.2d at p. 837).
D. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by (1) arguing that the jury should use his prior DUI convictions as evidence of his lack of truthfulness and (2) attacking defendant's "veracity" and assailing "the integrity" of his trial counsel. He contends the prosecutorial misconduct violated his Fourteenth Amendment right to due process.
The Attorney General asserts that one of defendant's claims was forfeited and that there was no prejudicial misconduct by the prosecutor.
1. Legal Standards
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " ' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 215-216 (Gray).) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
" 'Prosecuting attorneys are allowed "a wide range of descriptive comment" and their " ' "argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom." ' " ' [Citations.]" (People v. Jackson (2016) 1 Cal.5th 269, 349 (Jackson).)
"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A court will excuse a defendant's failure to object only if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (Jackson, supra, 1 Cal.5th at p. 349.)
2. Argument Regarding Defendant's Prior DUI Convictions
Defendant's prior convictions for vehicle theft and possession of drugs for sale were admitted for impeachment. Defendant's prior DUI convictions were admitted to show his knowledge of the danger of driving while under the influence and to show his conscious disregard of that danger. The trial court also found that the prior DUI convictions were admissible for impeachment, finding that they were crimes of moral turpitude.
The trial court instructed the jury that the crimes of "felony possession of drugs for sale and felony auto theft" were "crimes of moral turpitude" that could be considered in evaluating credibility. The trial court instructed the jury that defendant's prior DUI convictions could be used in determining (1) whether defendant "knew of the dangerousness of driving under the influence of a drug" and (2) whether defendant's actions "were the result of mistake or accident."
During argument to the jury, the prosecutor asserted that the jury could consider defendant's prior DUI convictions "for two reasons: one is to show that he had actual knowledge that this was dangerous conduct, that he had been told that; but also, you can use that in considering if his actions in this case were the result of some mistake or accident."
The prosecutor then reminded the jury that defendant had told "a story . . . about some other way this took place." The prosecutor told the jury that it "can and should" consider defendant's seven prior DUI convictions "in evaluating whether or not that's reasonable."
Defendant's trial counsel objected "to the last portion" of the prosecutor's argument. The trial court told the jury, "So the attorneys are allowed to bring to you the law, which is that you can consider prior conduct if the defendant presents an explanation of mistake or accident. [¶] There's a slightly different thing, which you cannot do, . . . you can't say, 'Well, because he committed driving under the influence of PCP in the past, he's automatically guilty of driving under the influence of PCP in this case, just because of the nature of the conviction and the nature of the current charges."
After the trial court reiterated that the jury could consider defendant's "past conduct for purposes of determining whether the accident or mistake happened," the prosecutor told the jury, "[I]t's a subtle distinction, but it's important. You can't just say, 'The defendant is a bad person. He's done this in the past, and he's automatically guilty.' You can't do that. [¶] What you can absolutely do, the law says, if the defendant is giving some explanation that this took place because of some mistake or accident, . . . you can consider how reasonable is it that someone who has that past conduct, seven prior convictions for doing that exact same type of conduct, driving while under the influence of PCP, how reasonable is his explanation? You can do that, and the law allows you to do that."
Defendant's contention that the prosecutor "implored the jury" to consider the evidence of his prior DUI convictions for an "inadmissible purpose" is belied by the record. As noted above, the trial court did not admit the prior DUI convictions solely to show defendant's knowledge, but also for impeachment. The jury was instructed it could consider those convictions in determining whether defendant's actions "were the result of mistake or accident." That instruction was consistent with the trial court's ruling admitting defendant's prior DUI convictions to show his conscious disregard of the danger of driving while under the influence and for impeachment. Thus, the prosecutor did not use " ' " ' " 'deceptive or reprehensible methods to attempt to persuade either the court or the jury' " ' " ' " (Gray, supra, 37 Cal.4th at p. 216) and did not commit misconduct when arguing about defendant's prior DUI convictions.
3. Argument About Defendant and His Trial Counsel
During closing argument, the prosecutor asserted that defendant had come up with a "fantastic story" about "a freak-type of accident." The prosecutor argued that defendant's explanation about his foot being stuck on the gas pedal "just doesn't make sense" and that it was "really convenient" for defendant to have supposedly suffered a blackout, when there was no evidence he had suffered from any condition leading to blackouts. The prosecutor referenced "the old spaghetti defense where you grab a bunch of stuff and throw it up against the wall and see if something sticks." The prosecutor also asserted that it would be "ridiculous" to believe that defendant "had an innocent foot cramp and somehow that resulted in this horrific coll[i]sion that took place." He continued, "That's a ridiculous, silly argument and it's not true."
" ' "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." [Citations.]' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1336-1337 (Seumanu).) "A prosecutor may vigorously challenge the validity of any defense, and can characterize the testimony of a witness, including the defendant, as untruthful, but to state or imply that defense counsel has fabricated a defense is generally misconduct. [Citations.]" (Id. at p. 1337.)
Because defendant did not interpose timely and specific objections to the asserted improper argument, his claim of prosecutorial misconduct was not preserved for appeal. (See Seumanu, supra, 61 Cal.4th at p. 1338.) But even if we were to consider the merits, we would find no error.
First, the prosecutor did not "impugn[] defense counsel's integrity." Our Supreme Court has explained that although a prosecutor commits misconduct by implying that "counsel was personally dishonest," such as by stating "that defense counsel 'put forward' a sham," a prosecutor does not commit misconduct by arguing that "the defense was unsupported by facts and thus a sham." (Seumanu, supra, 61 Cal.4th at pp. 1337-1338.) Here, the prosecutor's argument was entirely focused on the lack of evidence supporting the defense presented. The prosecutor did not imply that defendant's trial counsel was personally dishonest.
Defendant's analogy to People v. Herring (1993) 20 Cal.App.4th 1066 (Herring) is inapt. In Herring, the prosecutor compared the biracial defendant to a " 'primal man' " and " 'a parasite.' " (Id. at p. 1074.) These comparisons "had nothing to do with the crimes alleged" and implied that the defendant was in a class of "bad people" who were "more likely to do criminal acts." (Id. at pp. 1074-1075.) Such arguments were "directed at [the defendant's] character" and "invited the jury to decide the case based upon its own value judgment and not on the law." (Id. at p. 1075.) The prosecutor also asserted that the defendant's trial counsel represented " 'rapists, murderers, robbers, [and] child molesters,' " told his witnesses " 'what to say,' " and " 'does not want you to hear the truth.' " (Id. at p. 1073.) These "uncalled for aspersions on defense counsel's character and integrity directed the jury's attention to irrelevant matters and were not proper comments on the evidence or inferences to be drawn therefrom." (Id. at p. 1075.)
In the instant case, the prosecutor did not cast aspersions on defendant's character or on his trial counsel's character. The prosecutor's argument, which focused on the lack of evidence supporting the defense presented and the implausibility of defendant's testimony, was well within the prosecutor's wide latitude to "vigorously challenge the validity of [the] defense," and to "characterize the testimony of a witness, including the defendant, as untruthful." (Seumanu, supra, 61 Cal.4th at p. 1337.)
In sum, we find no merit to defendant's claims of prosecutorial misconduct.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.