Opinion
E080023
09-29-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHN IRICK, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct. No. FVI17003434, Debra Harris and John P. Vander Feer, Judges.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
On August 31, 2022, a jury convicted defendant and appellant John Irick of two counts of second-degree murder. (Pen. Code § 187, subd. (a).) He was sentenced to state prison for a term of 30 years to life. On appeal, he challenges his convictions on the grounds the evidence is insufficient to prove he acted with implied malice. We disagree and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
On the evening of December 14, 2017, defendant was driving on Interstate 15 toward Las Vegas when he caused a collision that resulted in the death of two people. He was subsequently charged with two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and two counts of murder (Pen. Code, § 187, subd. (a)). It was further alleged that he had three prior convictions for driving under the influence (Veh. Code, § 23152). The following testimony was presented to a jury.
A. Prosecution's Evidence.
1. Lesley Hitt's testimony
On December 14, 2017, at approximately 6:55 p.m., Lesley Hitt and her daughter Mary were heading to Las Vegas on Interstate 15, about half a mile from Riverside Drive. Lesley was driving when traffic slowed down to approximately 35 to 45 miles an hour "about a mile" before a stalled SUV. When Lesley saw the stalled SUV, she noted that its emergency lights were on and it was stopped in the fast lane. She had no difficulty braking or avoiding it. At Mary's insistence, the two stopped to help. Lesley parked their car on the right shoulder; the headlights and hazard lights were on. With the help of a young man, the two started pushing the SUV off the freeway. Another car began following behind, six feet back, to provide a safety buffer between them and oncoming traffic. The buffer car had its hazard lights and headlights on.
Suddenly, Lesley heard a bang. The young man was now lying on the left shoulder of the freeway, and Lesley did not see Mary. Lesley called out for her daughter and approached the truck that had struck Mary and the young man. Mary's body was under the truck and her legs were wrapped around the axle. Defendant got out of his truck and said, "'Oh, God, what did I do? I need a drink.'" He saw the front of his truck and said, "'I got to get out of here.'" As he tried to get back inside his truck, bystanders stopped him, pulling him outside. He did not offer any help or attempt to dial 911. Lesley saw a brown bottle in his hand. Traffic continued to move past the collision site; no other cars collided into the stopped cars.
The parties stipulated Mary suffered amputation of both legs and was pronounced dead at 5:42 a.m. on December 15, 2017, because of the collision.
2. Julia Del Billar's testimony
Julia Del Billar, her husband Paulasi Aitui, their two young children, and Del Billar's father were driving home to Utah on Interstate 15, about a half mile from Riverside Drive. Del Billar was driving, with the headlights on, approximately 65 to 70 miles an hour. When her car's advanced warning alerted her that she was approaching a vehicle too fast, she slammed on her brakes, swerved to the left, and successfully avoided hitting the vehicle immediately in front of her. She had not seen the stopped cars because their brake lights (and emergency lights) were not lit; those vehicles were pulling out from a stopped position (from behind the stalled SUV) to merge back into traffic. However, Del Billar saw the stalled SUV (a Suburban) in the number one lane, two vehicles ahead of her, because its emergency lights were on. Cars safely navigated around the stalled vehicle.
Del Billar drove her car to the left shoulder and turned on her emergency lights. She and her husband got out to help while her father stayed in the car with the children. The two tried to remove the elderly passengers from the SUV, but one passenger was unable to walk. Thus, Del Billar's husband suggested helping to remove the SUV off the freeway. As they began pushing the car, Lesley and Mary stopped to help. The SUV was almost out of the fast lane when the collision occurred. Del Billar did not know what happened. When she opened her eyes, she was lying face down on the shoulder of the freeway. The SUV was on the left shoulder, facing a different direction. After checking on her children and father, she called 911. She found her husband lying on the freeway, and Mary was pinned underneath the truck that had crashed into them. One of Mary's legs had been severed and was on the front grill of the truck. Del Billar's husband was lying on the ground and was struggling to breathe. A registered nurse began helping him. Del Billar began recording the scene with her cell phone; the video was played for the jury.
When defendant got out of his truck, Del Billar, who was two or three feet away, could smell alcohol emanating from his body. His speech was a "little slurred" and he repeatedly said, "'I don't know what's going on, what happened.'" He leaned against his truck. At one point, he said, "'Oh, let me like move the car,'" but bystanders told him not to move the truck since Mary was pinned underneath. Del Billar saw defendant get in and out of his truck two times. When he got in the first time, he took drinks ("like gulps") from a can. She never saw him throw anything in the surrounding desert. Traffic continued to pass on the right with no additional collisions.
Del Billar's husband was pronounced dead at 12:03 a.m. on December 15, 2017, because of the collision.
3. Kenneth Lindsey's testimony
Kenneth Lindsey was traveling northbound on Interstate 15 at approximately 70 miles an hour when he observed some cars in the fast lane move to the right lane and continue driving. As he approached, he saw some lights and the stalled SUV. When he was approximately 50 yards from the stalled vehicle, he slowed down to 20 miles an hour and saw people pushing the SUV. Lindsey continued to drive slowly about 30 yards back, turned on his hazard lights, and provided a buffer between those pushing the SUV and oncoming traffic. After making eye contact with the people pushing the SUV, Lindsey's car was hit from behind. He thought it had exploded or caught on fire because he felt the heat of the metal from the truck as it flew past his car on the left side. The truck ricocheted off the center median and struck the SUV and the individuals pushing it.
As Lindsey got out of his car, a motorist stopped and asked if he was okay. The stalled SUV was on the dirt, off the road, facing diagonally backward toward oncoming traffic. Lindsey approached the truck, the driver (defendant) was outside asking in "slurred speech" for his keys. Lindsey smelled alcohol from inside the truck and saw liquid splattered all over the inside of the windshield; the liquid also smelled like alcohol. Defendant started to pace, then staggered back. Lindsey smelled alcohol on defendant who did not seem to realize what had happened. Lindsey saw Mary pinned underneath the truck and Del Billar's husband nearby. Mary's leg was severed and caught in the grill of the truck. Defendant approached, coming within three feet of Mary and within six feet of Del Billar's husband; he staggered back to his truck, only concerned about his keys.
When California Highway Patrol (CHP) officers arrived, Lindsey observed defendant refuse to take a breathalyzer. He was combative and said, "'Get away from me. I don't want to take it. [¶] . . . [¶] 'Get off me. No, I won't take it.'" The motorist, who had stopped and asked Lindsey if he was okay, had observed the collision and told the officers that he had seen defendant swerving in and out of lanes a mile before hitting Lindsey's car.
4. The Investigating Officers' testimony
CHP Officer Salvador Herrera responded to the scene. The entire front of defendant's truck was smashed into the front of the windshield, which was shattered. There were no tire friction marks (a result of sudden braking) left by defendant's truck prior to hitting Lindsey's car; however, there were marks from defendant's truck after it collided with Lindsey's car. The damage to Lindsey's car indicated that defendant's truck hit it from behind and scraped along its left side. The SUV was in the center median, facing oncoming traffic.
While defendant was in the truck he repeatedly said that he needed to "get out of there or he needed to go." He had the truck's keys and was trying to start the ignition. His speech was "slow and slurred," he was unsteady when he walked, and he had difficulty standing on his own. Officer Herrera smelled alcohol emitting from defendant's breath and person, and from inside the truck. The officer opined that defendant was under the influence. He asked defendant for his driver's license or identification, and defendant provided a California identification card only. Officer Herrera proceeded to manage the collision scene after turning over defendant to CHP Officer Michael Mota.
Officer Mota observed defendant and testified that his eyes were "red and watery," his speech was "very slowed and slurred," he had "difficulty standing on his own," he continuously leaned on his truck, and his gait was unsteady. Defendant's person and breath smelled of alcohol. Defendant told Officer Mota that he was the driver of the truck, and his dog was inside. He said he had consumed one 16-ounce can of beer after the collision and threw the empty can into the desert. Otherwise, he denied consuming any other alcohol that day. No empty beer can was found. Defendant said he was driving 60 miles an hour in the right-hand lane and that he thought he "hit somebody." Officer Mota observed defendant repeatedly look at the limb on the front grill of his truck, as well as Mary lying on the ground. He asked about his dog, but not about the victims.
Officer Mota asked defendant to perform field sobriety tests, but he refused, saying he could not do them "after witnessing something like this." He was very evasive. Officer Mota performed the finger wave test on defendant; this test indicated that defendant was under the influence. The officer also tested defendant with a preliminary alcohol screen (PAS) device, a portable breath machine that measures blood-alcohol content (BAC). The officer observed defendant try to subvert the PAS test by only taking short shallow breaths. When told to take deeper breaths, defendant became argumentative, saying he was blowing hard into the device. Officer Mota took three tests from the PAS device over the span of four minutes. The BAC readings dropped substantially with each test (0.154, 0.126, and 0.108 percent), which is common when the user is trying to subvert the results of the PAS device. The PAS device was working properly and had no defects. Officer Mota opined that defendant was under the influence of alcohol and placed him under arrest. He was offered the option of taking either a blood test or a chemical breath test, and he opted for a chemical breath test. The results of the chemical breath test are more accurate than a PAS reading.
The PAS device requires the user to take deep long breaths for an accurate reading. The device has a manual trap, which allows the officer to capture a smaller breath sample if a user is only breathing shallow breaths. However, because the sample is smaller, the reading with the manual trap shows a lower BAC than the user's true BAC. Officer Mota used the manual trap because defendant was taking short shallow breaths.
Officer Mota transported defendant to the local jail, which was a few minutes away, for the chemical breath test. The device used for this test showed defendant was not blowing fully into it, indicating he was trying to subvert the results. The first reading showed his BAC at 0.17 percent. The breath sample provided in the second reading was even weaker and smaller than the first so the device was unable to generate a result. The second sample actually did not produce a result because the breathalyzer detected mouth alcohol. Mouth alcohol is alcohol detected in the mouth when the user regurgitate, vomits, or has consumed alcohol in the preceding 15 minutes.
Officer Mota asked defendant for a blood sample for testing, and he consented. Defendant tried to stall the blood draw until the officers brought his dog to the jail. Also, he "nonchalantly mentioned" that he had killed someone. The blood draw was taken at 8:30 p.m., approximately one and one-half hours after the collision. Defendant's blood test indicated a BAC of 0.244 percent, three times over the legal limit of 0.08 percent.According to criminalist Ricky Delgado, for a male weighing 235 pounds to have a 0.244 percent BAC immediately after consuming alcohol, he would have had to drink 12 beers. If the blood sample was not taken until one and one-half hours later (as in defendant's case), that person would have had to drink more than 12 beers.
The criminalist testified that defendant's blood sample was collected on December 14, 2017. It was tested three weeks later, on January 8, 2018. It was subsequently destroyed pursuant to protocol, which calls for destruction of blood samples one year from the date the sample is received unless there is a do not destroy request. The trial occurred in August 2022. There was no indication there were any problems with the sample or with the testing.
5. Defendant's prior convictions
Defendant had three prior convictions for driving under the influence of alcohol- two from 2009 and one from 2012. His driver's license was suspended in 2012 and was not reinstated by the Department of Motor Vehicles. Thus, at the time of the collision, he was not licensed to drive. In connection with each of his prior convictions, defendant signed the DUI Advisement of Rights Waiver and Plea Form, which included an advisement that he could be charged with murder if he continued to drive under the influence of alcohol and killed someone. For his 2012 conviction, he entered a guilty plea and was ordered to complete an 18-month alcohol multi-offender program. He was advised as follows: "Term 9. CVC 23593 requires the following advisory statement in any convictions for CVC 23152, 23153, or 23103 pursuant to 23103.5. [¶] I'm hereby advised that being under the influence of alcohol or drugs or both impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. [¶] If I continue to drive while under the influence of alcohol or drugs or both, and as a result of that driving, someone is killed, I can be charged with murder. [¶] I acknowledge I have read and understand this advisement." Defendant initialed and signed the advisal.
B. The Defense
The defense called criminalist Ricky Delgado. He agreed that defendant's second chemical breath test showed there was mouth alcohol, which is alcohol left over in the mouth after being recently consumed. This left over mouth alcohol has not fully evaporated and the breathalyzer detects it; it is not a valid measurement. For a valid subject test in breath alcohol, two readings must be produced. Since defendant's case yielded only one sample (with a reading of 0.17 percent), and the other indicated mouth alcohol, there was no valid result for his chemical breath test.
II. DISCUSSION
Defendant contends his convictions for second degree murder were not supported by substantial evidence that he acted with implied malice.
"In considering a challenge to the sufficiency of the evidence, we 'review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]
"'[S]econd degree murder based on implied malice has been committed when a person does "'"an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life"' . . ."' [Citations.] 'The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of "'an act, the natural consequences of which are dangerous to life.'" [Citation.] The mental component . . . involves an act "'deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'"' [Citation.] 'In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another-no more, and no less.' [Citation.]
"'It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.' [Citation.] Further, 'our courts have recognized that there is no particular formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach.' [Citation.]" (People v. Saucedo (2023) 90 Cal.App.5th 505, 512-513.)
"To support a finding of implied malice, the evidence must establish the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of the act's danger to life and a conscious disregard of that danger. [Citation.] This conscious disregard for the danger to life distinguishes implied malice from gross negligence, which involves 'the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.' [Citation.] 'Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed." The state of mind of the person who acts with conscious indifference to the consequences is simply, "I don't care what happens."' [Citation.] The standard for implied malice is subjective and requires the defendant appreciate the risk involved. [Citation.]" (People v. Murphy (2022) 80 Cal.App.5th 713, 726 (Murphy).)
According to defendant, the jury's implied malice finding is not supported by the evidence because (1) the jury hung on the issue of whether his actions constituted vehicular manslaughter with gross negligence, (2) the totality of the evidence fails to show that his specific act of drunk driving under the particular circumstances of the case created "a high probability" of death (People v. Watson (1981) 30 Cal.3d 290, 300 (Watson); see Murphy, supra, 80 Cal.App.5th at p. 726). As we explain, we disagree.
"Watson is the leading case on vehicular murder involving implied malice. [Citation.] There, the defendant drove to a bar and consumed a large quantity of beer. After leaving the bar, he drove through a red light and narrowly avoided a collision with another car. He then drove away at high speed, accelerating to 84 miles per hour before suddenly braking and skidding into an intersection where he collided with another car, killing two people. Watson's blood-alcohol level half an hour after the collision was 0.23 percent. An information charged him with two counts of second degree murder, but the trial court dismissed the murder counts. [Citation.]
"The California Supreme Court reversed the dismissal on the People's appeal, holding sufficient evidence existed to uphold the second degree murder counts in the information. [Citation.] The court found the following evidence as sufficient to support a finding that the defendant acted with conscious disregard for life: the defendant's blood-alcohol level supported a finding that he was legally intoxicated; he drove to the establishment where he was drinking, knowing he had to drive later; he presumably was aware of the hazards of driving while intoxicated; he drove at high speeds on city streets, creating a great risk of harm or death; and he was aware of the risk, as shown by the nearcollision and his belated attempt to brake before the fatal collision. [Citation.]" (Murphy, supra, 80 Cal.App.5th at pp. 726-727.) Although there is no test for analyzing the sufficiency of the evidence of implied malice, appellate courts have identified four factors (the Watson factors) relevant for upholding a second degree murder conviction based on drunk driving: "'(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.' [Citation.]" (Id. at p. 727; see People v. Wolfe (2018) 20 Cal.App.5th 673, 683 (Wolfe).) The absence of one factor "does not refute a finding of implied malice for purposes of second degree Watson murder" (People v. Suazo (2023) Cal.App.5th [2023 Cal.App. LEXIS 717, *18, fn. 3]) if the remaining factors are quantitively and qualitatively sufficient to support the jury's finding.
Before addressing the individual Watson factors, defendant argues the evidence as a whole shows the accident was the result of his unsuccessful attempt to avoid the collision and not his intoxication. He points to the prosecution's evidence of how a "completely sober person reacted to the particular circumstances of this case." Specifically, he notes that Del Billar, who was sober, only "avoided a serious collision" because "her car alerted her that she was coming upon traffic 'way too fast.'" He contends the only difference between their reaction "was evidence tending to show that [his] BAC was over the legal limit." We disagree.
The evidence shows that Del Billar was unable to visually note the presence of stopped vehicles because their brake lights (and emergency lights) were not lit. Rather, those vehicles were pulling out from a stopped position (from behind the stalled SUV) to merge back into traffic. In contrast, when defendant approached the area, Lindsey was driving slowly about 30 yards behind the SUV, with his hazard lights on to alert oncoming traffic. Likewise, both Lesley's and Del Billar's vehicles' hazard lights were on. Despite Lindsey's (and the other vehicles') hazard lights, defendant made no attempt to slow down or stop as evidenced by the lack of skid marks, nor could he avoid colliding with Lindsey's vehicle and the stalled SUV. Nonetheless, every other motorist, including Lesley and Lindsey, was able to avoid a collision and/or slow down and pass in the righthand lane without causing any collision. Thus, we reject defendant's claim that the "totality of the facts in this case," while sufficient to find that his driving constituted gross negligence, were insufficient "to prove that [his] driving created a 'high probability' of death."
Moreover, after considering the Watson factors, we conclude substantial evidence in the record supports the jury's finding of implied malice for defendant's second degree murder convictions.
First, defendant's BAC at the time of the accident was above 0.08 percent. The toxicology evidence showed defendant had consumed alcohol; his BAC was 0.244 percent, or three times the legal limit. While defendant asserts that the tests used to measure his BAC (PAS test, breathalyzer test, and blood test) produced less than credible results, not one result was anywhere close to the legal limit of 0.08, or less; they all pointed to a BAC more than the legal limit. Defendant's suggestion to the contrary is a red herring given his attempts to subvert an accurate result from either of the first two tests. Unable to undermine the blood test result, defendant tries to discredit its results. He questions whether the vial used to collect his blood was expired because it appears to have an expiration date of July 2017, when his blood was drawn at 8:20 p.m. on December 14, 2017. However, the person who drew his blood opined that the vial actually expired in July 2019, and that the "9" in 2019 looked like a "7" because the exhibit introduced at trial is a photocopy of the expiration date and "the bottom of the 9 was light, and so it didn't fully close, but it is a 9." Defendant further notes the criminalist (Ricky Delgado) who tested his blood sample on January 8, 2018, admitted that he was ignorant about how the sample was stored prior to testing, and that if it was not stored properly the results would be compromised. Yet, Delgado also testified there was no evidence of coagulation, no issues with preservatives, and no evidence of any bacteria or microbial growth. Thus, there is nothing in the record that demonstrates there was any problem with the blood draw or testing.
Nonetheless, defendant contends the jurors did not find that his BAC was 0.08 percent or above because they were unable to reach a verdict on the gross vehicular manslaughter counts that required such finding. He notes that the "sticking point for the jury was the credibility of the blood test results," and the trial court (Judge John P. Vander Feer) "understood the issue to be that the holdout juror was concerned about how the blood test evidence was handled and tested." According to the record, the holdout juror questioned the following stipulation: "The parties have agreed to stipulate that defendant, John Irick, had an attorney since the date of his arraignment, December 18th of 2017. [¶] The blood vial was available for blood split until its destruction on April 2, 2019. Mr. McDonald was not Mr. Irick's attorney until June 21 of 2019." The juror questioned why defendant's first counsel did not request a blood split, why defense did not test the sample for fermentation, and why the sample was destroyed since this is a murder case. According to the trial court, "[T]he stipulation is that the blood was available. It was destroyed, and [the juror has] a whole lot of questions about it. I don't know that's a rejection of that stipulation. She's questioning why these things weren't done. [¶] She's obviously accepting that they weren't done, just concerned why wasn't it for all those things." Because of this juror's concerns, the jury was "hopelessly deadlocked" on reaching a verdict as to counts 1 and 2 including any lesser included offenses, and the trial court declared a mistrial as to these counts.
Contrary to defendant's characterization of the situation, the holdout juror's issue with the stipulation was not that she rejected it, but that she questioned why additional testing was not performed. Defendant's assertion that "the jurors' not guilty verdicts regarding the manslaughter charges were obviously based on a lack of BAC evidence" is misplaced. Still, even if we discount the value of the results of all three of defendant's BAC tests, other evidence was presented to support a finding that defendant was impaired by alcohol before the accident. The jury could reasonably infer, from the substantial evidence presented, that defendant had consumed alcohol before the accident-Del Billar testified she smelled alcohol emanating from defendant's body (implying defendant drank alcohol either before getting in the truck or while driving), and his speech was a "little slurred"; and Lindsey testified he smelled alcohol on defendant and from inside his truck, saw liquid splattered all over the inside of the windshield, the liquid smelled like alcohol (implying defendant drank while driving), defendant's speech was "slurred," and defendant staggered when he walked. Both Officers Herrera and Mota opined that defendant was under the influence.
Furthermore, the circumstances of the crash also demonstrate defendant was impaired. According to a motorist who stopped to help, defendant was swerving in and out of lanes a mile before hitting Lindsey's car. Officer Herrera testified there were no tire friction marks left by defendant's truck immediately behind Lindsey's car, which indicates defendant did not attempt to apply the brakes as he approached Lindsey's car. Instead, defendant swerved to the left and side-swiped Lindsey's car before applying the brakes. As the toxicology expert testified, a person with a BAC "at or above .08 would at least be mentally impaired for the purposes of driving" and slurred speech and unsteady gait are consistent with alcohol impairment.
Second, regarding the Watson "predrinking intent to drive" factor, defendant contends there "was no evidence presented in this case tending to show that [he] had a 'predrinking intent to drive.'" We disagree. Given the eyewitness testimony, the jury could have inferred defendant consumed alcohol before getting in his truck. (See, e.g., Wolfe, supra, 20 Cal.App.5th at p. 683 [concluding the jury could have reasonably inferred that before the defendant began drinking, she intended to drive herself home from the bar because she had left her car at the bar earlier in the day].) Moreover, the jury could infer from the evidence of a liquid that smelled like alcohol splattered over the inside of defendant's truck's front windshield that defendant consumed alcohol immediately prior to the collision. (See People v. Autry (1995) 37 Cal.App.4th 351, 358 [finding a predrinking intent to drive based on evidence that throughout the day, defendant drove and drank, including driving to obtain more alcohol and drinking while driving].)
Third, applying the Watson factor concerning the dangerousness of a defendant's driving, defendant argues there "was no evidence presented in this case regarding [his] pre-collision driving," or that his "driving was 'unquestionably highly dangerous'" as evidenced by excessive speed, running red lights, committing traffic violations, or driving recklessly. Again, we disagree. The eyewitness accounts and physical evidence demonstrate defendant was serving in and out of lanes a mile before hitting the SUV and failed to brake as he approached Lindsey's car.
Finally, regarding the Watson factor of a defendant's knowledge of the hazards of driving under the influence, defendant argues that because every person who drives a car knows this, it "cannot justify a finding of implied malice." However, in addition to general knowledge that driving under the influence is hazardous, the prosecution presented substantial evidence defendant was specifically aware of those dangers. He was previously convicted of three DUI's, two from 2009 and one from 2012. In connection with each conviction, defendant was warned about the dangers of drunk driving and was advised that he could be charged with murder if he continued to drive under the influence of alcohol and killed someone. At the time of the collision, he was not licensed to drive because of his prior DUI's. Any rational jury could find beyond a reasonable doubt that defendant was aware that driving under the influence of alcohol endangers the lives of others. (See People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358-1359 [warning in conjunction with prior DUI convictions showed driver knew of hazards of driving under the influence]; People v. Moore (2010) 187 Cal.App.4th 937, 941 ["It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [defendant] was aware of the risk."].)
In concluding there was sufficient evidence of implied malice to support defendant's second degree murder convictions, we reject defendant's claim that "[i]f the facts of this case are sufficient to support an implied malice murder conviction, then the crime of gross vehicular manslaughter by intoxication is redundant and is effectively abrogated." Not so. Defendant's second degree (implied malice) murder convictions did not necessarily require proof that he used a vehicle and was intoxicated. (Wolfe, supra, 20 Cal.App.5th at p. 685.) Rather, the evidence was sufficient for a reasonable juror to conclude the totality of defendant's conduct evidenced a conscious disregard of the danger he posed to the lives of others on the roadway. "When the prosecution charges a defendant with a Watson murder, a vehicular manslaughter charge may be related to, but it is not necessarily included within, the murder charge." (Ibid.) Gross vehicular manslaughter by intoxication requires proof that the defendant used a vehicle and was intoxicated. (People v. Sanchez (2001) 24 Cal.4th 983, 991.) However, a second degree (implied malice) murder conviction does not necessarily require proof of either of these two elements. Here, the evidence was sufficient for reasonable jurors to conclude the totality of defendant's conduct evidenced a conscious disregard of the danger he posed to the lives of others on the roadway.
III. DISPOSITION
The judgment is affirmed.
We concur: FIELDS J., RAPHAEL, J.