Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County Super. Ct. No. 04HF1205, James A. Stotler, Judge.
The Law Offices of William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant Brandon Gregory Friend.
The Law Offices of Correen Ferrentino and Correen Ferrentino for Defendant and Appellant Michael Edward Lumary.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
After defendant Brandon Gregory Friend pleaded guilty to driving with a suspended license (Veh. Code, § 14601.2, subd. (a); all further references are to this code unless otherwise stated), the jury convicted him of two counts of vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), one count of causing great bodily injury while driving under the influence (§ 23153, subd. (a)), one count of causing great bodily injury while driving with a blood alcohol level of.08 percent or more (§ 23153, subd. (b)), and one count of hit and run causing injury and death (§ 20001, subds. (a), (b)(2)). The jury also found true that Friend caused bodily injury to more than one person (§ 23558), personally inflicted great bodily injury on two different people (Pen. Code, § 12022.7, subd. (a)), and fled the scene of the accident (§ 20001, subd. (c)). Defendant admitted he had a prior conviction for driving with a blood alcohol level over.08 percent. He was sentenced to 16 years, 4 months.
A jury convicted defendant Michael Edward Lumary of obstructing a police officer (Pen. Code, § 148, subd. (a)(1)) and being an accessory after the fact to a hit and run under section 20001, subdivision (a) (Pen. Code, § 32). He was given three years’ probation.
Friend raises several grounds for his appeal: 1) prosecutorial error in questioning a defense expert; 2) improper vouching for a witness by the prosecutor; 3) erroneous admission and exclusion of evidence; 4) and illegal sentencing. The Attorney General agrees that the sentence for hit and run causing injury or death should be stayed under Penal Code section 654. Lumary claims instructional error and prosecutorial misconduct.
As to Friend, the sentence for count 5 is vacated and the case is remanded for the court to resentence on that count and then stay the sentence under Penal Code section 654. In all other respects the judgment against him is affirmed. We also affirm as to Lumary.
FACTS
As a preliminary matter, we point out that Friend’s deposition summary style statement of facts was not helpful. Our task in deciding this appeal would have been simpler had Friend limited his statement of facts to include only those relevant to the issues on appeal.
One evening Friend went to a party at a home in Irvine. After several hours at the party, where he drank vodka and beer, Friend left the party, driving himself and two others in a BMW. Shortly after he left at about 11:30 p.m., Friend hit the rear end of an MG with two occupants, pushing it up on to the sidewalk and into a tree. Friend continued steering his car for several blocks, finally parking the car in the lot of an apartment complex. The three called a taxi and went to a nearby motel.
Paramedics and Irvine police officer Kyle Turner arrived on the scene shortly thereafter. The driver of the MG told a paramedic his car had been hit from behind and pushed into a tree. Both he and his passenger died within an hour or two of the accident.
At about 2:30 a.m. Irvine police officer Joel Davis found Friend outside of the motel; he smelled alcohol on his breath and his body. Friend told Davis he had been at a friend’s house and had one shot of vodka five hours earlier. He said his driver’s license was suspended so he had not driven but had had someone drop him off at the hotel.
At about 6:00 a.m. Friend spoke to Detective Jonathan Cherney. He told him he had not driven the night before because his license had been suspended due to a conviction for driving under the influence eight months before. He said he had taken a cab to the party and had two shots of vodka at 8:00 or 9:00 p.m. On leaving the party he had not wanted to find a ride home so he and his two passengers had rented a room at the motel.
As the interview progressed, Friend told Cherney he had driven that night, but the alcohol had not affected him. He said that at the time of the collision he had been going about 55 miles per hour and the MG about 30 to 35 miles per hour. At the same time he was changing lanes the MG also changed lanes, without signaling, right in front of him. During the interview Friend also told Cherney he had been to five sessions of an alcohol counseling course where the dangers of drinking and driving had been discussed.
When Friend’s blood was drawn at about 9:00 a.m. its alcohol content (BAC) was 0.092 percent. An expert testified that based on Friend’s age and weight and the approximate period during which Friend had been drinking, at the time of the accident his BAC would have been 0.23 to 0.24 percent, three times the legal limit and the result of drinking approximately 11 one-ounce shots or twelve-ounce beers. A person with a BAC at this level would be “impaired for purposes of driving.”
One of Friend’s passengers, Heather Pak, told police Friend had been driving too fast. The other passenger, Anthony Orozco, who was cut and bruised in the collision, testified he did not know how fast Friend was driving, but the MG, driving slowly, “swerved” from another lane in front of the BMW, which then “clipped” it. An acquaintance of Friend’s, Samantha Hart, riding in another car the night of the collision, saw Friend cut off that car when switching lanes. His driving made her nervous and afraid.
Cherney created a reconstruction of the collision based on police reports, including measurements at the scene, and statements of witnesses. He was of the opinion the BMW was going between 67 and 75 miles per hour coming up on the MG, which was travelling between 9 to 17 miles per hour. Both cars changed lanes at the same time. Friend was driving too fast and too close to the MG to avoid hitting it.
Defendant’s reconstruction expert, William Otto, disagreed with Cherney’s methods, calculations, or conclusions. His opinion was that the BMW was travelling between 54 to 56 miles per hour while the MG was going 19 miles per hour. He did not believe the BMW was too close to the MG but was driving safely. The accident was caused by the MG making an unsafe lane change. Even if Friend had been driving at the speed limit, 40 miles per hour, and had not been drinking, he would not have been able to avoid the collision.
Lumary is Friend’s grandfather. At about 1:00 a.m. the morning after the collision Friend called and spoke to Lumary’s wife, telling her he had been a “fender bender.” The couple, who had been sleeping, got up and drove to the motel. During the drive they had conversations with Friend and with his former girlfriend. The girlfriend also told them the accident had been a “fender bender.” Upon arrival at the motel at about 3:00 a.m., they saw 6 to 10 police officers with Friend. Lumary could tell Friend was scared and concluded he was in some kind of trouble. Lumary knew Friend’s license had been suspended and that he had left the scene of the collision; he decided to tell police he had been the one driving the BMW. He did not know anyone had been hurt or killed.
Upon being approached by Davis, Lumary stepped away from his wife and told Davis he had been driving the BMW with another woman and after rear-ending the MG he had left the scene of the accident. He had driven the car to the apartment complex and walked to his daughter’s home. He was unable to tell Davis the names of the street where the collision had occurred or of the apartment complex. During the interview Davis did not tell Lumary about the injuries or fatalities.
In a second interview at about 6:00 a.m., Lumary said he called his wife from his daughter’s house; she picked him up and took him home. After receiving a call from Friend’s former girlfriend he called Friend who “didn’t sound right,” leading Lumary to believe he had been drinking or was somewhere he should not be. He did not know the problem and did not ask many questions, but wanted to pick him up. In response to Davis’s question Lumary denied “trying to protect” Friend.
After Davis told him there had been “serious injuries” Lumary said he had “no idea about that.” Davis continued that the police were “not taking this lightly,” to which Lumary responded they should not. After additional questions, Lumary finally stated, “I made my statement. I’m not going to change it.” “Right or wrong, I’m not going to change [it]. I made my statement and I’m going to stick to it. [¶]... [¶] And if somebody... [unintelligible] hurt I’m really, really sorry to hear that.” “I don’t know how serious th[e] injuries are....” Throughout the interview Davis told Lumary he did not believe his story but thought he was protecting Friend. He also told him that falsely saying he had been the driver was “a crime itself.” When Lumary was arrested later that morning Davis told him there were fatalities. Lumary was visibly upset.
Lumary testified that when he decided to take responsibility for the collision he did not know Friend had been drinking or that anyone had been hurt or killed. During the second interview when Davis told him there were serious injuries he thought Davis was using a “scare tactic” and did not believe him. He never thought about whether Friend had committed a felony or a misdemeanor and did not know when a hit and run fell into either category. When Lumary was arrested he was told of the two deaths and was “total[ly] shock[ed]” and “couldn’t believe it.”
Additional facts are set out in the discussion.
DISCUSSION
1. Friend’s Appeal
a. Cross-Examination of Friend’s Expert
Friend contends the prosecutor improperly cross-examined his accident reconstruction expert, Otto, on two different occasions. He argues the questions violated the work-product doctrine and the attorney-client privilege. He also asserts in his reply brief that prosecution attempts to contact his expert violated the Rules of Professional Conduct barring ex parte communication with an opponent’s witness.
1) Questions as to Another Defense Expert
The prosecutor first asked Otto if he knew someone named Kerry Clark; Otto did not. She then asked if Otto knew whether defendant had hired Clark to prepare a reconstruction of the accident; again Otto did not know. The prosecutor continued, asking whether Clark “was an expert that was hired before you at some point.” Defense counsel objected to the “insinuation,” arguing it was irrelevant, and asked it be stricken. When the court sustained the objection, the prosecutor queried, “But he’s not someone who you collaborated with on this, is it?” Counsel again objected that “[t]he... line assumes facts not in evidence.” The court again sustained the objection.”
Later in the cross-examination, the prosecutor picked up the same thread, asking Otto “if there w[as] some other guy who testified in a court --” The court sustained defense counsel’s objections as irrelevant, argumentative, and assuming facts not in evidence. The prosecutor then asked whether Otto had testified at the preliminary hearing. When he replied that he had not, the prosecutor asked whether Otto knew if defendant had had another expert testify. After an objection and discussion, the court held a sidebar. Although it was not reported, the parties later made a record of the discussion. Defense counsel summarized the relevant portion of the transcript of the preliminary hearing where his original expert testified, which was on an unrelated topic and not in an expert capacity. Counsel then objected that the questions improperly insinuated “that there has been an adverse, supposedly, accident reconstruction opinion given,” referred to the prior objections that were sustained, and asked that the prosecutor be admonished. The prosecutor advised she did not intend to argue the point.
Friend argues the prosecutor’s questions were an attempt to improperly imply to the jury that Friend had another reconstruction expert it had not called, presumably because the expert’s opinion was unfavorable. He bases his objection on the work product doctrine.
People v. Zamudio (2008) 43 Cal.4th 327 refutes this claim. It dealt with Penal Code section 1054.6, enacted by Proposition 15, which “‘“expressly limits the definition of ‘work product’ in criminal cases to ‘core’ work product, that is, any writing reflecting ‘an attorney’s impressions, conclusions, opinions, or legal research or theories.’”’ [Citation.]” (Id. at p. 355, italics omitted.) In our case the challenged evidence, testimony about the possible existence of another defense expert, is not a writing of any kind, much less one reflecting conclusions or impressions. Friend characterizes the transcript of the preliminary hearing as a writing “reflect[ing]” that defendant had retained a second expert, trying to force applicability of work product protections. But the transcript itself is not protected nor are its contents.
On the basis of Zamudio, defendant’s reliance on the earlier case of People v. Coddington (2000) 23 Cal.4th 529, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1045, 1069, fn. 13, fails. There, although seven defense psychiatrists had examined the defendant, only three testified. Despite objections based on work product and attorney-client privilege, the trial court allowed the prosecutor to ask those three if they knew of the other examinations. The Supreme Court ruled this violated the work product doctrine. (Id. at p. 605.) It determined that the work product was “the investigation of [the] defendant’s mental state,” whether favorable or not, and the prosecutor’s questions “and his invitation to the jury to infer that [the] defendant had been examined by other experts who had not been called to testify” violated the protection. (Id. at p. 606.) Coddington did not consider Penal Code section 1054.6. (See Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107, fn. 4 [Coddington “applied the law before Proposition 115”].)
In the opening brief Friend makes a generalized claim the questions were “reversible error” without any further explanation other than the work product argument. In the reply brief he asserts he was not just relying on a work product theory but was also arguing the questions were improper because the prosecutor’s only motive was to insinuate to the jury that defendant had hired another expert but had not called him or her to testify because the opinion was adverse.
This argument is problematic. Friend did not discuss it until his reply brief and we need not consider issues raised for the first time in a reply brief. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30.) Moreover, Otto never answered any questions other than whether he knew Clark or if defendant had hired him to perform an accident reconstruction. All of counsel’s objections were sustained. (People v. Alfaro (2007) 41 Cal.4th 1277, 1329 [“the trial court sustained defendant’s objections to both lines of questioning, thereby limiting the possible prejudicial effect of the prosecutor’s questions and comments”].) Further, the prosecutor did not argue this point. (People v. Mooc (2001) 26 Cal.4th 1216, 1234 [no prejudice where prosecutor did not argue issue raised by insinuation without factual basis during cross-examination].)
Finally, the jurors were instructed with CALCRIM Nos. 104 and 222 that a lawyer’s questions were not evidence. (People v. Sisneros (2009) 174 Cal.App.4th 142, 153 [“To the extent one might possibly read such an improper insinuation into the prosecutor’s statements, we note that the jury was instructed that the attorney’s statements were not to be considered as evidence”].) We presume the jury followed instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.) Thus, even if the questions were improper, which we do not decide, they were not prejudicial.
2) Questions Regarding Defense Expert’s Failure to Speak to Prosecutor
The other questions to which Friend objects began with his counsel asking Otto during direct examination whether the prosecutor had telephoned him. Otto replied affirmatively and went on to testify that he had not returned the call because defense counsel had advised him not to and unless he is told by the lawyer retaining him that it is alright to do so he does not speak to opposing counsel. He prefers not to have discussions unless all parties are present.
On cross-examination the prosecutor referred to that testimony. In response to a follow-up question, after the court overruled an objection based on assuming facts not in evidence, Otto testified that defense counsel had never told him the prosecutor had asked for a meeting because the prosecutor could not read Otto’s notes. When asked if, “as a scientist,” he believed it was “ethically... important for... everyone to be on the same page,” he answered “[n]o,... I do depositions all the time.” The court sustained the prosecutor’s non-responsive objection and motion to strike to everything but “no.”
After defendant rested, the prosecution sought to introduce testimony of Cherney in rebuttal to Otto. The court overruled defendant’s objection. Although not challenging his decision, the court ruled that because defense counsel had advised Otto not to speak to the prosecutor, the prosecutor and Cherney learned information for the first time during Otto’s testimony and had the right to attempt to rebut it.
Finally, in the rebuttal portion of closing argument the prosecutor disagreed with defense counsel’s characterization of Otto as independent, stating, “If he was independent, he could have called me back.... [¶]... [¶]... I don’t understand what he’s talking about, and I’m calling him to try to get some help. He didn’t call me back. Can you imagine what you would hear from the defendant’s attorney if one of our witnesses didn’t call [him] back? If I told Detective Cherney, don’t talk to [defense counsel?] That’s not fair. [¶] He’s a scientist. His work quality and his work ethic should be the paramount consideration of his life, not pleasing a defense attorney.... And yet he tells you it’s of no consideration to him that I couldn’t read his notes. That’s not his business. If the truth is what you’re concerned about, if you’re in the business of truth, which he is not, but if you’re in the business of truth, you’re going to want to prove that truth, especially to the D.A.”
Friend presents a scattered laundry list of reasons why this questioning and argument were improper, but none persuades. Friend’s counsel raised the issue on direct examination, eliciting that Otto had not returned the prosecutor’s call on counsel’s advice. If there had been a valid objection to the questions, Friend forfeited it by his introduction of the subject. Thus any substantive exceptions to the prosecution’s cross-examination on the same subject and its arguments based thereon are waived.
On the merits, the argument fails as well. Friend asserts the prosecutor was ethically bound not to contact a defense expert without Friend’s consent because the expert was his counsel’s agent. Friend presents no direct authority and in the reply brief cites only to Rules of Professional Conduct, Rule 2-100, which he summarizes as prohibiting ex parte communication with the opposing party’s expert. Not so. This rule prohibits ex parte communication with an opposing party who is represented by counsel.
Likewise, there was no infringement on the attorney-client privilege. Although we found no criminal cases, in the civil context the prosecution’s calling Otto would not have been improper. Where an expert is hired solely to consult with counsel any report is protected as work product and opposing counsel may not contact that expert. (County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654.) But once an expert is designated as a witness, any work product protection is lost. (Ibid.) The same is true as to the attorney-client privilege. (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 484 [any attorney-client privilege applicable to material obtained in that context disappears where agent will testify].) Here, Otto’s report had been produced to the prosecution.
The prosecutor did not ask about any confidential communications (Evid. Code, § 952; People v. Coddington, supra, 23 Cal.4th at p. 605 [“attorney-client privilege... encompasses confidential communications between a client and experts retained by the defense”]) and only sought clarification of notes Otto had already provided to the prosecution. If anything in the report had been confidential, once it was disclosed to the other side it lost any protection on the grounds of either attorney-client privilege or work product. Clearly by the time of the prosecution’s call any work product or attorney-client privilege was gone.
Further, the questions did not impugn the ethics of Friend’s lawyer who advised Otto not to speak to the prosecutor. As the trial court noted, counsel had the right to take such a position but had to deal with the consequences. Moreover counsel was free to argue to the jury why he gave those instructions. In addition, the comment in closing argument that Otto should have wanted “to prove th[e] truth” did not amount to shifting the burden of proof to defendant. The jury instructions clearly stated the prosecution had the burden of proof. And the claim Friend was prejudiced because the questions “curr[ied] favor with the jury” warrants no discussion.
Nor were the questions, Cherney’s rebuttal evidence, or argument tantamount to a comment on the exercise of Friend’s right to counsel or right to remain silent. The issue was merely whether Otto had not spoken to the prosecutor.
Friend complains the questions raised the inference he was trying to hide a flaw in Otto’s opinion. If so, that was perfectly legitimate. The questions went to bias, a proper subject for cross-examination. (People v. Hillhouse (2002) 27 Cal.4th 469, 494 [questions about witness’s refusal to speak to opposing party proper; “show[] the possibility of bias”].) The jury had the opportunity to weigh Otto’s refusal to speak with the prosecutor against his reasons for doing so. Moreover, the statements in closing argument were not improper. The “prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.)
b. Prosecution Vouching for Its Expert Witness
Defendant claims the prosecution violated his right to due process by impermissibly vouching for its expert witness, Cherney; he also challenges the prosecutor’s criticism of Cherney during closing argument.
In opening statement, in describing Cherney the prosecutor referred to him as “the best and the brightest that law enforcement has to offer. And I tell you that not subjectively, that’s not my opinion; but factually. He graduated at the top of his class in the academy. He scored very high, historically high levels on through all of the officer training and officer preparation requirements that the Irvine Police officers [have] to go to.”
In closing argument the prosecutor stated that Otto was “a paid Monday morning quarterback... [who] sits back[,]... lets everything be done[,] [a]nd then... criticizes how it was done. And he gets paid a handsome fee. Just from his testimony alone in court, he could be taking his family on some fancy vacation in Hawaii.” She continued, “Who is he to say what a safe speed is on the road? Is he entrusted with a duty [to] the people of the State of California to [do so]? Is he out there protecting the lives of citizens that drive on the roads... ? [¶]... [¶] He’s never been in any traffic engineering study to determine speed limits for the roads.... Who is he to say what’s fast and what’s not. And he’s telling you that 14 miles an hour over the speed limit on a city street is fine.... Why, because [he] says it is. Because it suits his client. He gets paid to find faults in police work.... [¶]... [¶] He’s an incredibly biased and anything but independent witness.”
In rebuttal, the prosecutor argued: “Th[e] investigation... was the most thorough investigation by the Irvine Police Department. Every witness was interviewed and tape-recorded. Every officer wrote a report. Every aspect of this case was investigated by the detectives to the full extent. Detective Cherney... has lived this case for three years. He has considered every angle and every possibility before reaching his conclusions. [¶] I would be lying if I told you that even if you don’t believe Detective Cherney the defendant is guilty. Because Detective Cherney’s analysis and his conclusions and his evaluation of this case are what proved the defendant’s guilt. His version of how this collision occurred is the version that he investigated and came up with after doing all of the things that he’s been trained in his industry. [¶] There’s got to be belief and trust in Detective Cherney. And if you don’t have that, there’s nothing I can say in the next ten minutes that[ is] going to change your mind. If you believe and you trust Detective Cherney’s investigation, his work quality and his work ethic, then you have to give weight to his conclusions and his opinions because he’s lived this case for three years. And his analysis takes into account every possible scenario.”
At the close of her argument the prosecutor stated, “I want to thank you, ladies and gentlemen, once again, on behalf of myself and Detective Cherney for all of the courtesy that you’ve given us and for your consideration of this case. It’s been a long case for us, and I know it’s been a long case for you.”
Defense counsel did not object to any of these statements.
“To preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition. [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 336.) Friend acknowledges he did not do so but argues we should decide the issue anyway because it concerns a significant right and will avoid an ineffective assistance of counsel claim. Failure to object operated as a waiver. Nevertheless we consider the claim on the merits.
Prosecutors commit misconduct if they “‘invok[e] their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.’ [Citation.]” (People v. Bonilla, supra, 41 Cal.4th at p. 336.) A prosecutor “‘may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation]’ [citation]” (People v. Tafoya (2007) 42 Cal.4th 147, 181), but has “‘wide latitude to vigorously argue... her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence’ [citation]” (People v. Dykes (2009) 46 Cal.4th 731, 768). The remarks about which Friend complains fall in to the latter category.
Friend maintains there was no evidence to support the statements and arguments that Cherney was the “best and the brightest,” the investigation was “most thorough,” every witness had been interviewed, every officer wrote a report, every aspect of the case was fully investigated, and Cherney, having lived with the case for three years, reached his conclusion only after considering every alternative. He asserts that without underlying evidence, the jury’s only conclusion was that the prosecutor was using the prestige of the district attorney’s office to vouch for Cherney’s credibility. We are not persuaded.
First, there was direct evidence of Cherney’s credentials. He testified as to his training and the awards and honors he had received, including graduating at the top of his class and the highest average of any student to attend the police academy. Further, the evidence showed the breadth and depth of the investigation, and while there may not have been direct testimony that every witness was interviewed or every officer had written a report, it is a fair conclusion that the jury understood the prosecutor was highlighting the thoroughness of the investigation. The context of these comments does not suggest the prosecutor knew something that had not been presented in trial.
Friend also challenges the prosecutor’s deprecation of Otto, claiming this was made worse by her thanking the jury on Cherney’s behalf as well as her own. “‘The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence...’ [citations]” (People v. Tafoya, supra, 42 Cal.4th at p. 182) and has “‘wide latitude in describing the factual deficiencies of the defense case’ [citation]” (People v. Huggins (2006) 38 Cal.4th 175, 208). “Nor is counsel prohibited from mentioning the witness’s possible bias or interest supported by the evidence. Accordingly, it is not wrong to argue that an expert’s conclusions are so implausible as to suggest a lack of impartiality. And counsel is not precluded from reminding the jurors that the expert’s findings support the goals of the party who called him, and may therefore not be objective.” (People v. Arias (1996) 13 Cal.4th 92, 182.)
The comparison between Cherney, a police officer protecting the public, and Otto, a paid expert, fell within these boundaries. And thanking the jury on behalf of Cherney was not misconduct. Cherney was the prosecution’s designated witness and sat at counsel table throughout the trial. He was an investigating officer as well as a reconstruction expert. It is not reasonable to think the jury believed the prosecutor was vouching for his testimony when she made the comment.
Finally, Friend criticizes the statement that Otto had “never been in a traffic engineering study to determine speed limits for the roads.” Friend attempted to introduce a speed survey Otto made on the street where the collision occurred. According to the offer of proof, using a radar gun Otto measured how fast cars were driving on the road one year later, on the same day and same time of night as the collision, to support a conclusion that Friend was not in violation of the basis speed law that prohibits driving any faster than is safe. (§ 22350.) The prosecutor objected on several grounds, including relevance and a lack of foundation the study had followed established scientific procedures or state regulations. There was no evidence Otto knew whether road and traffic conditions were identical to those on the day of the collision. The court sustained the objection on relevance and foundation grounds and under Evidence Code section 352.
Friend argues that having successfully kept the study from being introduced, the prosecutor was barred from making the characterization of Otto. We disagree. There is no evidence that Otto’s study, which merely measured the speeds of cars as they drove by, was a true engineering traffic study performed according to appropriate scientific and regulatory guidelines and designed to measure appropriate speed limits.
Finally, the court instructed the jury (CALCRIM Nos. 104 and 222) that counsel’s statements and arguments were not evidence. Again, we presume the jury followed the instruction. (People v. Prince, supra, 40 Cal.4th at p. 1295.)
c. Exclusion of Defense Expert’s Speed Study
Friend challenges the exclusion of the speed study described above, arguing he was denied his Sixth Amendment right to present a complete defense and a general due process right to a fair trial. The court excluded the study on the grounds it lacked foundation, was not relevant to show a safe speed at the time of the collision, and under Evidence Code section 352. We agree with the general proposition that Friend was entitled to present all relevant evidence in his defense, but this does not apply if the evidence is otherwise inadmissible.
Friend argues the study should have been admitted to support Otto’s conclusion that, under the circumstances present at the time of the collision, driving 15 miles per hour over the posted speed limit was safe and his further opinion that the MG caused the collision by driving over 20 miles per hour under the speed limit and then making an unsafe lane change right in front of Friend. He claims exclusion of the study allowed Cherney’s testimony that driving at 15 miles over the speed limit was unsafe to go virtually unchallenged. He also asserts Cherney’s statement that Friend’s speed was unsafe “would naturally lead the jury to discount the rest of [Otto’s] testimony” and anywhere the two men’s testimony were at odds, the credibility of Friend’s and his passenger’s explanation of what occurred was “nil.” This was particularly detrimental, he continues, because causation was the primary issue and it was a close case.
But the fact some witnesses may be more credible than others does not justify admitting inadmissible evidence. Moreover, Otto testified extensively and presented his opinion that Friend was driving at a safe speed and the collision would have occurred even if he had been driving at the speed limit. Nor did the court abuse its discretion by excluding the study under Evidence Code section 352. Admission of an irrelevant study lacking foundation would have confused the jury and made the study more prejudicial than probative.
Therefore, “‘[w]e... reject defendant’s various claims that the trial court’s exclusion of the proffered evidence violated his federal constitutional rights to present a defense.... There was no error under state law, and [courts] have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.”’ [Citations.]” (People v. Prince, supra, 40 Cal.4th at p. 1243.)
d. Evidence of Friend’s Attendance at Alcohol Awareness Classes
Over Friend’s objections the court admitted evidence that, prior to the collision here, with a BAC over.08 percent Friend was in an auto accident, was put on probation, and, as part of his probation, was ordered to a attend classes dealing with the dangers of drinking and driving. It also allowed in evidence that Friend had actually attended classes. The court ruled the prior accident gave Friend “an awareness of the risks” of drinking and driving.
Friend argues this was error because “awareness” was not an element of the charges in the two counts for gross vehicular manslaughter while intoxicated and admission violated Evidence Code section 352.
The same arguments Friend makes here were addressed and rejected in People v. Ochoa (1993) 6 Cal.4th 1199. There the court held that, where the defendant was charged with gross vehicular manslaughter while intoxicated, evidence of his prior conviction for driving while intoxicated, resulting probation, and participation in an alcohol awareness program was admissible to show the defendant knew the risk of driving while drinking. (Id. at pp. 1202, 1205-1206.) The defendant had argued the evidence was inadmissible because his state of mind was not in issue, the test for gross negligence being objective.
The Ochoa court disagreed, first setting out the definition of gross negligence as “‘the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.... The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]’ [Citation.]” (People v. Ochoa, supra, 6 Cal.4th at p. 1204.) It continued, “In determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks.... [I]f the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence... would be appropriate whether or not a reasonable person in defendant’s position would have recognized the risk.” (Id. at p. 1205.)
The court also ruled against the defendant’s Evidence Code section 352 argument because of “the clear relevance of the evidence.” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) The jury was instructed that the evidence had been admitted for a limited purpose to show the defendant’s state of mind and not to show a probation violation.
While conceding the holding in Ochoa, Friend attempts to distinguish it by stating, without any argument, that it was decided before the adoption of CALCRIM No. 590, given to the jury here, and it did not discuss any jury instructions for gross negligence. But Ochoa relied on the definition of gross negligence (People v. Ochoa, supra, 6 Cal.4th at p. 1205), which parallels the language in CALCRIM No. 590: “a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily 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.”
Although he acknowledges the jury was instructed it could not use the evidence to show predisposition to commit a crime or bad character, Friend argues it was never instructed about how it was allowed the evidence. He concludes that it could only have been used to show he knew, at least to some extent, of the risks involved in driving after drinking. But this is exactly what the Ochoa court said was permitted.
Friend suggests the evidence was insufficient to establish whether he knew of the risks. He points to the testimony of the director of the program Friend attended. Although the director testified that almost every class includes information about the hazards of drinking and driving, he did not know if Friend had been in one of the classes he personally had taught. But records showed Friend had attended the required number of classes. And Friend himself told Cherney he had attended five classes where the dangers of drinking and driving had been explained.
Friend argues this evidence was speculative and merely gave free rein to the jury to speculate about the dates he had attended the classes and also what he heard and comprehended. Not so. First, the specific dates Friend attended are irrelevant. Further, it was a reasonable inference for the jury to draw that, the material having been taught, Friend understood it, especially in light of Friend’s admission he had been to the classes.
Finally, there was no abuse of discretion under Evidence Code section 352. The evidence was more than “marginally probative” and relevant under Ochoa as tending to show whether Friend was aware of the risks of drinking and driving. Further, the court limited its use, instructing the jury it could not be used to show Friend’s bad character or predisposition to commit the crime.
e. Cumulative Error
Because we have not found individual error on any of the issues Friend raised, a fortiori there is no cumulative error.
f. Sentencing Claims
In addition to substantive arguments, Friend also claims the court erred in the sentence it imposed. Specifically he claims the sentences for the second count of vehicular manslaughter, the count for hit and run with a death, and the enhancement for fleeing the scene as to the second victim should be reversed. We agree the sentence for hit and run with a death should be stayed under Penal Code section 654 and remand to the trial court for resentencing. In all other respects the sentence was proper.
1) Sentence for Hit and Run Causing Death and Enhancement for Fleeing the Scene
Friend was convicted for hit and run causing a death under section 20001, subdivisions (a) and (b)(2) (count 5), for which he was given a sentence of eight months. His sentence for one of the vehicular manslaughter counts was enhanced with an additional five years for fleeing the scene of an accident. Friend contends that he cannot be sentenced for both and asks that the judgment and accompanying sentence as to count 5 be vacated.
To support his argument Friend relies on the Swann-Gilbert rule (People v. Gilbert (1969) 1 Cal.3d 475, 479-481; People v. Swann (1963) 213 Cal.App.2d 447, 449), which prohibits “prosecution under [a] generalized statute... when a specific law is intended by the Legislature for a given factual situation. [Citations.]” (People v. York (1998) 60 Cal.App.4th 1499, 1504.) Thus Swann-Gilbert deals with charges and prosecutions, not sentencing, which is what Friend is challenging.
The Attorney General concedes, however, that the sentence for count 5 should be stayed under Penal Code section 654. Under subdivision (a) of that section, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
We are not sure if this is the correct analysis. The conduct punished in count 5, hit and run causing death to the two victims, is not identical to that covered by the flight enhancements to counts 1 and 2. The substantive crime of hit and run under section 20001, subdivision (a) proscribes more than the mere stopping at the accident scene required to avoid an enhancement under section 20001, subdivision (c). It also requires the driver provide his name, address, and vehicle information, and render aid if necessary. (§§ 20001, subd. (a), 20003.) Further the law is not clear as to whether Penal Code section 654 applies to all enhancements, and neither party cited a case supporting a rule that, even if the conduct were the same, section 654 would bar punishment for both an enhancement and a substantive offense.
Nevertheless, based on the Attorney General’s concession, we will stay the 8-month sentence for count 5. It is shorter than the sentences for the two counts of gross vehicular manslaughter with their enhancements, 11 years and 3 years and 8 months, respectively.
The Attorney General argues that the sentence for count 5 should be two years, the presumptive middle term, not the 8 months imposed. Friend does not really dispute the substance of the argument but asserts only that we should not assume what the sentence would have been and should remand for resentencing. We agree with Friend and will remand the case to the superior court to resentence on count 5 and then stay that sentence under Penal Code section 654.
2) Sentence for Flight Enhancement on Second Vehicular Manslaughter Conviction
Friend was convicted of two counts of vehicular manslaughter under Penal Code section 191.5, one for each of the two victims. The sentence for each was enhanced, five years for the first and one year, eight months for the second. He claims the second enhancement of one year, eight months should be vacated.
Pursuant to section 20001, subdivision (c), “A person who flees the scene of the crime after committing a violation of Section 191.5 [and other sections] of the Penal Code, upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison.... The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.” Friend claims the Legislature intended that under this section a defendant be sentenced to only one five-year enhancement. He asserts the language of the statute “suggests” the act being punished is fleeing, not how many people were injured in an accident. Friend fled one scene only once and thus, his argument continues, he should be punished only once.
The Attorney General presents an alternate reading of section 20001, subdivision (c). The statute requires that anyone convicted of gross vehicular manslaughter while intoxicated “shall be punished.” The section specifically states an additional sentence “shall” be imposed for “conviction of any” of the specified violations and the court is prohibited from striking a true finding the crime was committed. (§ 20001, subd. (c), italics added.) In this case there were two convictions, one for each victim. We conclude a plain reading of the language confirms this is what the statute means. A sentence is to be imposed for each conviction triggering the enhancement.
People v. Calhoun (2007) 40 Cal.4th 398 is indirect authority for this conclusion. In Calhoun, where there were two victims, the issue is whether section 20001, subdivision (c) applied to an aider and abettor. Calhoun had been drag racing with another, who struck and hit the car in which the victims were riding. One was killed and the other seriously injured. Calhoun was convicted of two counts of gross vehicular manslaughter, and two enhancements for fleeing the scene were found true. (People v. Calhoun, supra, 40 Cal.4th at p. 401.) The Court of Appeal ruled that section 20001, subdivision (c) did not apply to aiders and abettors and vacated the two 5-year sentence enhancements. (Ibid.) In holding that the section applied to an aider and abettor, the court reversed and ordered that the true findings under section 20001, subdivision (c) be reinstated. (People v. Calhoun, supra, 40 Cal.4th at p. 408.) Although the propriety of two enhancements was not raised, there was no question that both would be reinstated.
As further support for his argument Friend contends that by sentencing him twice the court “violated the double counting rule” prohibited by Penal Code sections 654 and 1170, subdivision (b) and a rule generated by case law. But, although he mentions these “rules” in the opening brief, he fails to do more than lay them out, neglecting to explain their applicability by reasoned legal argument. (People v. Stanley (1995) 10 Cal.4th 764, 793).
In the reply brief, Friend does expand his argument as to Penal Code section 654 somewhat, by distinguishing cases cited by the Attorney General for the proposition that Penal Code section 654 does not apply to enhancements when the underlying crimes do not fall within the section’s strictures. But he does not satisfactorily explain why section 654 would apply in this fact situation when the statute specifically provides for an enhancement for each violation.
Friend also points to two statutes (Pen. Code, § 12022.5, subd. (d) [exception to statutory prohibition of additional sentence for use of firearm where it is element of crime]; Health & Saf. Code, § 11370.2, subds. (b), (c) [additional sentence for each prior specified felony conviction]) that he claims “show that the Legislature knows how to carve out an exception to” the “double counting rule.” But section 20001, subdivision (c) itself provides for an enhancement for each violation.
3) Sentence for Second Conviction of Gross Vehicular Manslaughter While Intoxicated
Friend claims his two-year sentence for the second count of gross vehicular manslaughter while intoxicated should be vacated or stayed. He again relies on the Swann-Gilbert rule and Penal Code section 654.
In support of his Swann-Gilbert argument Friend points to section 23558, which provides: “A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of... Section 191.5 of... the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim.... The maximum number of one year enhancements that may be imposed pursuant to this section is three.” But, as stated above, Swann-Gilbert does not deal with sentencing, only with charges. Friend cites nothing to show he could not be charged for a second count of gross vehicular manslaughter while intoxicated.
Nor is his Penal Code section 654 claim any more persuasive. Friend maintains he did not intend to harm anyone and that he drove while intoxicated without knowing how many people were in the MG. He asserts there is “no rational basis” to believe it was the Legislature’s intent to allow a separate prosecution for each victim plus an additional enhancement when the act is the same.
But the act in count 2 is not the same. Friend killed a second person, for which prosecution is allowed. The sentence for the enhancement, which applies to each additional injure victim, is entirely separate. There was no error.
2. Lumary’s Appeal
a. Failure to Instruct on Elements of Gross Vehicular Manslaughter and Felony Hit and Run with Injury
Friend was convicted pursuant to Penal Code section 32 of being an accessory after the fact to felony hit and run causing injury or death under section 20001, subdivision (a). He claims the court erred because it did not instruct on the underlying felonies of gross vehicular manslaughter and felony hit and run causing death.
Under Penal Code section 32 an accessory is someone who, knowing a felony has been committed, helps the perpetrator of the felony avoid arrest, prosecution, trial, or punishment. CALCRIM No. 440, read to the jury, instructs on the elements of this offense: “To prove that [Lumary] is guilty of this crime, the People must prove that: [¶] 1. Another person, whom I call the perpetrator, committed a felony; [¶] 2. [Lumary] knew that the perpetrator had committed a felony or that the perpetrator had been charged with or convicted of a felony; [¶] 3. After the felony had been committed, [Lumary] either harbored, concealed, or aided the perpetrator; [¶] AND [¶] 4. When [Lumary] acted, he intended that the perpetrator avoid or escape arrest, trial, conviction, or punishment. [¶] To decide whether the perpetrator committed the felony of hit and run with injury, please refer to instruction 20001(a) (Felony Hit and Run with Injury) that I will give you on that crime.”
Instruction 20001(a) given to the jury stated: “The driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person shall, upon knowing that he had been involved in an accident, immediately stop the vehicle at the scene of the accident and shall give the following information to the person struck or the driver or occupants of any vehicle collided with and to any traffic or police officer at the scene of the accident: [¶] [Name, address, and other pertinent information.] [¶] Failure to stop at the scene of an accident involving injury or death qualifies as a felony under California law.”
Lumary requested a jury instruction stating that hit and run is a felony only if it causes serious injury or death. He argued that a hit and run with injury is a “wobbler” and that he would not have known whether Friend’s conduct would be charged as a felony. The court denied the request.
Lumary makes a two-pronged attack: first, it was error to include the last sentence of instruction 20001(a) and second, the court should also have instructed as to the elements of the two underlying felonies for which Friend was charged. The thrust of Lumary’s argument is that the instructions did not inform the jury that Lumary had to know a felony had been committed when he lied to the police. Because the court did not instruct on the elements of the two felonies Friend committed, “the jury was left with the mistaken understanding... that Lumary could be... [an] accessory if he merely had some knowledge that there was a hit and run with injury, even if this injury was trivial.” He maintains that an “[o]rdinary hit and run, even with some injury,” is usually charged as a misdemeanor and that most people, including the jurors and Lumary, would not know “a hit and run with trivial injury could be felony conduct.” That is why, continues Lumary, instructions on the elements of the two underlying felonies should have been given because most people understand those to be felonies.
This argument is flawed. First, notwithstanding the more minor harm to Friend’s passenger, the occupants of the MG were killed. This is not a trivial injury. Second, there is evidence Lumary knew the severity of the injuries. During one of the police interviews of Lumary, Davis told him there were serious injuries and in a later interview told him two people had died. Lumary never retracted his claimed responsibility. In addition, the evidence showed that when Lumary arrived at the motel there were at least six and maybe ten officers present. This suggests something far more serious than a minor traffic collision. “[I]n determining whether a defendant had the requisite knowledge and intent to commit the crime of accessory, the jury may consider ‘such factors as [the defendant’s] possible presence at the crime or other means of knowledge of its commission....’ [Citation.]” (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 837.)
Lumary points to his testimony that he did not witness the collision and relied on Friend’s description of the collision of as a “fender bender” and further that Lumary did not believe Davis but considered him to be using a “scare tactic” to get him to reveal the truth. But contrary evidence is not sufficient to overcome evidence of his knowledge, and it was up to the jury to determine what Lumary knew. And that neither of Friend’s passengers knew of the injuries is irrelevant. The instructions were sufficient.
b. CALCRIM No. 440
Lumary contends CALCRIM No. 440 is unconstitutionally vague as applied to him in this case because it did not inform him the hit and run would be charged as a felony. We disagree.
A jury instruction is not analyzed under the “void for vagueness” standard because it “does not establish the elements of a crime, but merely attempts to explain a statutory definition.” (People v. Raley (1992) 2 Cal.4th 870, 901.) As the Attorney General points out, the information gave the required notice to Lumary he was being charged with being an accessory to felony hit and run.
In his reply brief Lumary argues the issue is not his notice of charges before trial but whether he had “adequate notice of what constitutes felony conduct since whether the hit and run is charged as a felony is left entirely to the arbitrary discretion of the prosecution.” He argues that as a lay person, he could not know whether Friend’s acts would be charges as a felony or a misdemeanor and that he could be convicted for a felony even if he believed at the time of the crime that it was a misdemeanor.
We fail to see how this argument relates to CALCRIM No. 440. Its purpose was to instruct the jury as to the law. (People v. Saldana (1984) 157 Cal.App.3d 443, 453.) A jury instruction is not designed to give a defendant “adequate notice of what constitutes a felony” vis-à-vis the prosecutor’s charges.
c. Prosecutorial Misconduct
Lumary maintains that the prosecutor committed misconduct by erroneously stating that Lumary’s belief there had been no serious injuries was not a defense. To convict Lumary of being an accessory after the fact to a felony, the prosecution had to prove he knew a felony had been committed. (In re Malcolm M. (2007) 147 Cal.App.4th 157, 165.) Lumary testified he did not know Friend had committed a felony because he was unaware the victims had been killed. When Davis told him the two had been seriously injured, he did not believe him.
In closing argument the prosecutor referred to Lumary’s testimony, stating, “The fact that he didn’t believe the officer is not a defense.... [¶] You can determine what a person is thinking based on circumstantial evidence. Let’s say a defendant is charged with rape. And he comes to court and he says, ‘Well, when she was telling me “no,” I didn’t really believe her.’... That’s not a defense, because as a juror, you’d have to ask yourself, ‘Well, under what circumstances is the girl telling him no? Does she have a glass of wine in her hand, and is she giggling when she’s saying no?’” When Lumary’s lawyer objected, the court overruled it, stating, “I think it’s an analogy; and as long as it doesn’t go too far, I’ll allow it.”
Shortly thereafter, the prosecutor again argued, “[h]e was told there was a hit and run. He was told there were injuries. He commented on that topic to the police. Look at the surroundings to determine what he knew. [¶] The fact that he says he didn’t believe is not a defense. Compare it with all the other evidence. Circumstantial evidence... can be used to determine what a person knew.”
Lumary contends these statements were “misleading” and suggested to the jury the prosecution had to prove only that Lumary “reasonably should have known” there were serious injuries. We disagree.
When read in context the statements were accurate and proper. The prosecutor was arguing that the mere fact Lumary testified he did not believe Davis did not absolve him from the crime. The jury could consider whether they believed him and whether he knew of the injuries by considering the circumstantial evidence, including that he knew Friend was driving with a suspended license and that he was afraid. Lumary believed Friend had been drinking and was in trouble of some kind. He also saw six to ten police officers with Friend at the motel when he arrived there. This, combined with Davis’s statement that there had been serious injury, was sufficient circumstantial evidence for the jury to infer Lumary knew a felony had been committed.
The analogy to rape was “less than ideal,” (People v. Morales (2001) 25 Cal.4th 34, 47) however. There was no comparison to the conduct being tried and discussions of rape are almost always inflammatory. But the error was harmless. There was no suggestion Friend himself had committed a rape or any other sex crime. The context of the statement shows it was used to illustrate a point about Lumary’s knowledge.
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Lumary has not shown a reasonable likelihood the jurors relied on this statement to convict him. Further, the court instructed the jury with CALCRIM No. 222, which provides that nothing the prosecutor says during argument is evidence and CALCRIM No. 200, requiring the jury to follow the instructions. We presume the jury understood and followed the jury instructions. (People v. Prince, supra, 40 Cal.4th at p. 1295.)
DISPOSITION
As to defendant Brandon Gregory Friend, we reverse the sentence for count 5 and remand to the trial court for resentencing, the new sentence to be stayed under Penal Code section 654. The judgment as to Friend is otherwise affirmed. The judgment against Michael Edward Lumary is affirmed.
WE CONCUR: SILLS, P. J.FYBEL, J.