Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF126925. J. Thompson Hanks, Judge.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant Efrain Rodriguez was convicted of three counts of second degree murder, in violation of Penal Code section 187, subdivision (a) (counts 1, 2, & 3), three counts of gross vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5, subdivision (d) (counts 4, 5, & 6), and one count of hit and run causing death, in violation of Vehicle Code section 20001, subdivision (a) (count 7). The convictions stemmed from a freeway collision in which defendant’s vehicle rear-ended another vehicle, causing three deaths. Defendant was sentenced to an aggregate term of 45 years to life.
1 Guilt in counts 4, 5, and 6 relied on proof of three prior convictions of driving while intoxicated, in violation of Vehicle Code sections 23152 and 23153.
On appeal, defendant argues that his conviction should be reversed because the trial court erred in failing to give the jury CALJIC No. 2.01, which would have addressed the sufficiency of circumstantial evidence to show that defendant was driving under the influence at the time of the collision, a fact crucial to defendant’s convictions. Defendant argues that this error was prejudicial.
We agree that the court erred in failing to give CALJIC No. 2.01, but we disagree that the error was prejudicial. Therefore, we affirm the judgment.
II. THE EVIDENCE PRESENTED AT TRIAL
Just after midnight on November 5, 2005, defendant’s SUV collided at 65 miles per hour with a passenger car that had come to a stop in a freeway construction zone. Three of the four people in the passenger car were killed, two from internal trauma caused by the sudden acceleration of the car and one from thermal injuries with smoke inhalation caused by a car fire. Two Chevrolet trucks that were traveling together had also come to a stop ahead of the passenger car and were hit in a domino effect. The four-car collision occurred in the carpool lane, where cones and arrow boards had been set out in a 941-foot-long “taper,” forcing cars from the carpool lane into the fast lane. Traffic slowed as it approached the lane closure, and oncoming drivers could see a sea of brake lights.
Eyewitness testimony and the damage pattern of the collision suggest that defendant did not brake. An assessment after the accident indicated that defendant’s brakes were mechanically sound.
A passenger in the second Chevrolet truck testified that, after stepping out of his own vehicle, he saw the driver of the SUV step out of his vehicle, staggering “like he was hurt or something.”
At 1:51 a.m., defendant called his sister-in-law, Lucia, who told him that people had been killed in the accident and that the police were looking for him. About 2:00 a.m., defendant requested a room at a motel. The motel owner helped defendant complete the registration form because defendant’s handwriting was illegible. Defendant checked out of the motel the next morning, leaving the room free of trash. At approximately 9:00 a.m., defendant called the house where his parents and Lucia lived. During that call, his mother convinced him to turn himself in, and defendant asked Lucia for help doing that. At 9:17 a.m., Lucia called the California Highway Patrol and arranged for defendant’s arrest. Defendant was taken into custody. About 11:20 a.m., Officer Michael Ritter, the officer investigating the accident, interviewed defendant. According to Officer Ritter, at the time of the interview defendant looked tired and unwell, had red, glassy eyes, and smelled of alcohol. Officer Ritter concluded that defendant looked “kind of hung over.”
In his interview with Officer Ritter, defendant said he drank three beers at a casino between 7:30 and 9:30 p.m. the previous night and had had no alcohol since then. He said after leaving the casino, he went to visit a friend from work named Ramiro. When Officer Ritter called defendant’s workplace, no one there could identify Ramiro. Defendant said he was not taking any medications or drugs and had no illnesses or medical conditions, such as diabetes or epilepsy. He said that at the time of the collision, he could still feel the effects of the three beers “a little.” He said the accident occurred when the car in front of him stopped suddenly, and that he put on his brakes but was unable to avoid hitting the car. According to defendant, Officer Ritter told him he would not be giving him a blood alcohol test, but defendant requested one. After the interview, about noon, defendant was given a blood alcohol test, which showed a blood alcohol level of 0.05 percent. A criminalist testified at trial that a blood alcohol level of 0.05 percent at noon would indicate a blood alcohol level of 0.17 to 0.30 percent at midnight the night before, assuming no other alcohol was consumed between midnight and noon. The lower number in this range, 0.17 percent, assumes a low burn-off rate, and the higher number, 0.30 percent, assumes a high burn-off rate. The criminalist estimated that to reach a blood alcohol level of 0.17 to 0.30 percent, a person of defendant’s size would need to have absorbed the alcohol of 8 to 15 beers.
Defendant testified to the following events relating to the collision: Between about 7:30 and 9:30 the night of the accident, he drank three 12-ounce beers at a casino, waited 40 minutes, and then drove to his coworker Ramiro’s house, where he stayed for about three hours and ate two bowls of posole, a hominy and pork stew, before starting home. Immediately before the collision, he was driving in the carpool lane about 60 to 65 miles per hour. Traffic was also moving about 60 to 65 miles per hour. He did not see cones, arrow boards, or brake lights. A small car, whose type and color he was unable to see, was changing lanes from right to left. Without signaling, this car merged into the carpool lane ahead of defendant and suddenly stopped. Defendant wanted to hit the brakes, or did hit the brakes, before colliding with the car. His head hit the steering wheel, the air bag inflated, and he believes his body may have hit the windshield. When he got out of the car, he was dazed and confused, was “seeing stars,” and could not hear anything. He did not notice a car on fire. He walked off the freeway and onto surface streets. After walking for a while, he called Lucia. He then continued walking until he came to a motel, where he rented a room. The next morning, after returning his motel key to the owner, defendant bought two beers. It was light out, but defendant does not know what time it was. He does not remember where he bought the beers. He drank one beer, walked to a pay phone, called home, and talked to his mother. After talking to his mother, he finished the second beer. In the same telephone call or in another telephone call during the same approximate time frame, he also talked to Lucia. He finished both beers about 15 minutes before he was arrested. During the interview with Officer Ritter, after defendant said he drank three beers the night before, Officer Ritter made a gesture with his eyes at the interpreter. Defendant interpreted this gesture as an accusation that he was drunk. This prompted defendant to lie about the two beers he drank that morning. Defendant thought if he lied he could help himself.
Defendant had three prior convictions for driving while intoxicated, and had attended three state-mandated driving under the influence (DUI) programs: a first offender program of four months, a second offender program of 18 months, and a multiple offender program of 18 months. These programs included instructional, group, and one-on-one sessions addressing legal, family, and societal consequences of and alternatives to drunk driving. As required, defendant also attended Alcoholics Anonymous meetings concurrently with the second offender and multiple offender programs. Defendant acknowledged at trial that drinking and driving is dangerous and that if you drink and drive, you can kill people.
III. DISCUSSION
A. The Trial Court Erred in Failing to Instruct the Jury With CALJIC No. 2.01, Which Would Have Addressed the Sufficiency of Circumstantial Evidence to Show That the Defendant Was Driving Under the Influence, a Fact Crucial to Defendant’s Convictions
Defendant argues that the court erred in instructing jurors with CALJIC No. 2.02 (sufficiency of circumstantial evidence to prove specific intent or mental state) instead of CALJIC No. 2.01 (sufficiency of circumstantial evidence generally). CALJIC Nos. 2.01 and 2.02 are alternate instructions for circumstantial evidence. CALJIC No. 2.01 is designed to guide the jury in using circumstantial evidence to determine any fact, including intent or mental state, while CALJIC No. 2.02 is designed to guide determinations of intent or mental state only. (People v. Honig (1996) 48 Cal.App.4th 289, 341; People v. Marshall (1996) 13 Cal.4th 799, 849.)
CALJIC No. 2.02 provides: “The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s]...], [or] [the crime[s] of... which [is a] [are] lesser crime[s]],] [or] [find the allegation... to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
CALJIC No. 2.01 provides: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
Circumstantial evidence was offered to prove two facts in this case: (1) that defendant was driving under the influence at the time of the collision; and (2) that defendant was aware of the dangerousness of his driving under the influence and showed a conscious disregard for life. Defendant contends that while CALJIC No 2.02 provided useful guidance for evaluating the evidence for defendant’s awareness of dangerousness and his conscious disregard for life, it did not provide guidance, as CALJIC No. 2.01 would have, for determining whether defendant was, in fact, driving under the influence.
Defendant argues that the finding of driving under the influence is crucial to the charges of second degree murder and gross vehicular manslaughter with intoxication, and that if an instruction had been given guiding jurors in testing the evidence for this finding, there is a reasonable probability that a more favorable result to defendant would have occurred. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
1. Circumstantial Evidence: Definition and Standard for Jury Instruction
Circumstantial evidence does not “stand on its own” as direct evidence does, but involves a “two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it.” (People v. Anderson (2007) 152 Cal.App.4th 919, 931.) Whereas direct evidence is “applied to the fact to be proved, immediately and directly, and without the aid of any intervening fact or process,” circumstantial evidence is “applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred.” (People v. Goldstein (1956) 139 Cal.App.2d 146, 152.)
The court has a sua sponte duty to instruct the jury on the rules governing circumstantial evidence when circumstantial evidence is substantially relied upon for proof of guilt. (People v. Wiley (1976) 18 Cal.3d 162, 174; People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) Circumstantial evidence is considered to be substantially relied upon for proof of guilt when direct evidence is scant or absent (People v. Williams (1984) 162 Cal.App.3d 869, 875; People v. Zerillo (1950) 36 Cal.2d 222, 233) and, in place of such direct evidence, other evidentiary facts combine to form a pattern of incriminating circumstances (People v. Williams, supra, at p. 874; People v. Wiley, supra, at p. 174; People v. Gould (1960) 54 Cal.2d 621, 629, overruled on another point in People v. Cuevas (1995) 12 Cal.4th 252, 271-272).
2. Circumstantial Evidence Was Offered to Prove Two Facts Crucial to Defendant’s Convictions: (1) That Defendant Was Aware of the Dangerousness of His Driving Under the Influence (Counts 1-3); and (2) That Defendant Was in Fact Driving Under the Influence (Counts 1-6)
A showing of second degree murder requires a showing of implied malice, which, in turn, requires a showing of “both a physical and a mental component, the physical component being the performance of ‘“an act, the natural consequences of which are dangerous to life,”’ and the mental component being the requirement that the defendant ‘“knows that his conduct endangers the life of another and... acts with a conscious disregard for life.”’” (People v. Hansen (1994) 9 Cal.4th 300, 308.)
Circumstantial evidence was offered to prove both (1) that defendant was aware of the dangerousness of his driving under the influence and showed a conscious disregard for life, the mental component of implied malice; and (2) that defendant was driving under the influence at the time of the collision, the physical component of implied malice and also a fundamental element of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5.) Direct evidence was offered to prove the first fact, but not the second.
The circumstantial evidence of defendant’s knowledge of the dangerousness of driving under the influence consists of evidence of defendant’s prior DUI convictions and attendance at state-mandated DUI programs. This evidence is circumstantial because it requires the inference that defendant’s experience and education instilled in him an awareness of the consequences of drunk driving.
The trial court’s admission of evidence of prior DUI convictions and classes is in keeping with decisions such as People v. Brogna (1988) 202 Cal.App.3d 700 and People v. McCarnes (1986) 179 Cal.App.3d 525, which have found that “evidence that a defendant has suffered a prior conviction and participated, as a condition of probation, in some form of alcohol education program which emphasized the dangers of driving while intoxicated is relevant to prove the accused’s awareness of the life threatening risks caused by his conduct.” (People v. Brogna, supra, at p. 709.)
Defendant’s acknowledgment on cross-examination of the dangerousness of drunk driving constitutes direct evidence of this fact:
“Q: Is drinking and driving dangerous, [defendant]?
“A: Yes.
“Q: If you drink and drive can you kill people?
This exchange does not constitute an admission of implied malice, since the defendant maintains that he was not drunk at the time of the collision and that therefore there was no danger to be aware of at that particular time. However, if defendant’s intoxication were to be established, this evidence of general awareness would go directly to the question of implied malice.
The circumstantial evidence that defendant was driving under the influence at the time of the accident comprises: a test result showing a blood alcohol level of 0.05 percent 12 hours after the accident; expert retrograde extrapolation indicating a blood alcohol level of 0.17 to 0.30 percent at the time of the accident; defendant’s testimony that he did not see the construction zone, together with witness testimony that the construction zone was obvious; expert and witness testimony that suggested defendant did not brake before the collision; defendant’s behavior the night of the accident (staggering and illegible writing); and defendant’s appearance and odor the morning after the accident (looked tired, unwell, had red, glassy eyes, and smelled of alcohol).
This evidence is circumstantial because no piece of it “stands on its own,” proving defendant’s intoxication at the time of the accident “immediately and directly” and “without the aid of intervening facts or process[es].” (People v. Goldstein, supra, 139 Cal.App.2d at p. 152; People v. Anderson, supra, 152 Cal.App.4th at p. 931.) The test result cannot prove intoxication at the time of the accident without the aid of the expert retrograde extrapolation. Defendant’s testimony that he did not see the construction zone is meaningful only when paired with the witness testimony that the construction zone was obvious. The evidence that defendant did not brake before the collision cannot stand on its own as proof of defendant’s intoxication, because lack of braking could be otherwise explained (e.g., defendant was reaching for something in the backseat), but it does tend to produce a persuasion of truth when combined with the other facts. All the evidence relies on “intervening facts or process[es]”—scientifically recognized characteristics of alcohol, such as its rate of metabolization and its effects on attention, reaction time, behavior, and appearance.
Prior cases have also treated as circumstantial some of the specific kinds of evidence at issue here: blood alcohol results (Burg v. Municipal Court (1983) 35 Cal.3d 257, 266, fn. 10); expert testimony on retrograde extrapolation (People v. Warlick (2008) 162 Cal.App.4th Supp. 1, 7); and witness testimony of behavior, appearance, and smell consistent with intoxication (People v. Philpott (1962) 201 Cal.App.2d 859, 865).
There is no direct evidence that defendant was driving under the influence.
3. CALJIC No. 2.01 Is the Proper Instruction for the Circumstantial Evidence in This Case
CALJIC No. 2.01 is inclusive of all issues, including intent or mental state, while CALJIC No. 2.02 is specific to intent or mental state only. (People v. Honig, supra, 48 Cal.App.4th at p. 341; People v. Marshall, supra, 13 Cal.4th at p. 849.) CALJIC No. 2.01 “is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state.” (People v. Cole (2004) 33 Cal.4th 1158, 1222.)
Here, intent is not the only element of the offense that rests substantially or entirely on circumstantial evidence; it is questionable, in fact, whether intent is even one of the elements of the offense that rests on circumstantial evidence, since there also exists direct evidence of intent. The element of the offense that does rest, and rests entirely, on circumstantial evidence is defendant’s act of driving under the influence, a nonintent issue included in the scope of CALJIC No 2.01, but not CALJIC No 2.02. The failure to give CALJIC No. 2.01, therefore, was error.
Although CALJIC No. 2.90 on reasonable doubt was given, “[w]hen proof of guilt is wholly or substantially dependent on inferences to be drawn from a set of circumstances... [t]he instruction regarding the use of circumstantial evidence to prove guilt must be specifically given. It is not sufficient to merely give the instruction defining the general standard of proof beyond a reasonable doubt.” (Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1096.)
B. The Failure to Instruct the Jury With CALJIC No. 2.01 Was Not Prejudicial
1. Harmless Error: Standard
“The failure to give CALJIC No. 2.01, where appropriate, is assessed under the standard of People v. Watson[, supra, ] 46 Cal.2d [at p.] 836].” (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274.) Under the Watson standard, “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2dat p. 836.) The Supreme Court has subsequently explained that the term “reasonably probable” as it is used in Watson “does not mean more probable than not. It means only that there appear some substantial chance greater than a mere possibility that the result would have been different in the absence of the error.” (People v. Ross (1967) 67 Cal.2d 64, 84.)
2. An Examination of the Evidence
At trial, the criminalist enumerated the mental and physical symptoms of intoxication, including, at low levels (BAL of 0.01-0.04 percent), lowered inhibition, increased risk-taking, and impairment of divided attention, and at higher levels (BAL of 0.05-0.07 percent), impairments to speech, vision, hearing, balance, coordination, and reaction time, with larger deteriorations corresponding with higher blood alcohol levels. In this case, there is evidence of several of these indices of intoxication, including: divided attention (defendant did not see the construction zone or notice stopped cars); impaired reaction time (defendant did not brake); and physical impairments (defendant staggered and wrote illegibly). There is also evidence of appearance and odor consistent with intoxication (defendant looked tired, unwell, and smelled of alcohol the morning after the accident).
Perhaps the weightiest evidence in this case, however, is that indicating that defendant’s blood alcohol concentration at the time of the accident was at least 0.17 percent and at most 0.30 percent. This evidence consists of a blood alcohol test taken 12 hours after the accident and a criminalist’s testimony about this test. Of particular note is the criminalist’s calculation of defendant’s blood alcohol concentration at the time of the accident, given the test result, the time between the blood draw and the accident, the defendant’s weight, and standard burn-off rates (the criminalist used both a high and a low rate to create a range inclusive of most people).
Blood tests have long been accepted and legislatively recognized as evidence of intoxication (McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 525; Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 817, fn. 6) and “[t]he value of such objective scientific data of intoxication to supplement the fallible observations by humans of behavior seemingly symptomatic of intoxication cannot be disputed” (People v. Sudduth (1966) 65 Cal.2d 543, 546), for “while the accounts of eyewitnesses are often uncertain and conflicting on the issue of intoxication, blood alcohol tests are so subject to reliable scientific analysis that 23 states have enacted statues sanctioning the use of such tests” (People v. Lane (1966) 240 Cal.App.2d 634, 637). Expert extrapolation from such tests has also been deemed to be reliable. The California Supreme Court concludes: “It is common... for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time.” (People v. Clark (1993) 5 Cal.4th 950, 993, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Of course, “there are numerous variables such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates” (Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1185), but if these variables are taken into account and uncontested by the defense—as they were in this case—there is no reason why an expert’s extrapolation of a blood alcohol result should not be considered reliable.
Except for a brief mention of defendant’s hung-over appearance and alcoholic odor the morning after the collision, defendant’s focus is exclusive to the blood alcohol evidence—the blood test and the criminalist’s testimony about it. Defendant concedes that this evidence is sufficient to show intoxication if proved. Given the above cited reliability of blood alcohol tests and retrograde extrapolation, and in view of cases in which blood test evidence alone establishes intoxication (see, for example, People v. Fite (1968) 267 Cal.App.2d 685), we agree that blood alcohol evidence may be sufficient to infer intoxication. At the same time, we bear in mind the Supreme Court’s caution that blood test evidence, although the “usual type of circumstantial evidence” to show blood alcohol level, is not necessarily “conclusive” of intoxication if its accuracy is challenged or there is other circumstantial evidence tending to establish that the defendant was not intoxicated. (Burg v. Municipal Court, supra, 35 Cal.3d at p. 266, fn. 10.)
To determine whether it is reasonably probable that, in examining the blood alcohol evidence in this case, a jury guided by CALJIC No. 2.01 would have come to a result more favorable to defendant, we turn to the language of the instruction, finding three essential directives: (1) guilt may not be found unless the evidence cannot be reconciled with any rational conclusion other than guilt; (2) each fact essential to complete a set of circumstances must be proved beyond a reasonable doubt; and (3) evidence may not be used to infer guilt if it is equally compatible with innocence as with guilt.
On appeal, defendant focuses on the second directive of CALJIC No. 2.01, arguing that “[l]eft without the crucial guidance that CALJIC No. 2.01 would have provided on this issue, the jury could reasonably have concluded that some or all of the facts that made up the set of circumstances leading to an inference of truth of this element could have been proven by some standard less than reasonable doubt.” Defendant identifies the facts he considers essential to complete the set of circumstances: “[T]hat [defendant] had not had anything more to drink after the collision; that his.05 [percent] blood alcohol level 12 hours after the collision was accurately measured; that the proper rate of ‘burn-off’ was utilized; and that the calculations used to determine his blood alcohol level at the time of the collision were accurate.”
Despite defendant’s contention that a jury might have found some or all of these facts susceptible to reasonable doubt, he offered few specific challenges either at trial or on appeal that might have undermined them.
Indeed, defendant was a party to the stipulation that his blood alcohol level was taken in conformance with appropriate standards and procedures, and he raises no challenges to the accuracy of the test.
The stipulation provided: “It is stipulated by and between the People and the defendant, through his attorney, that an evidentiary blood sample was drawn in a medically approved manner from the defendant, Efrain Rodriguez, at approximately 12:08 p.m. on November 5th of 2005. The sample was sealed and transported in an unadulterated condition in the ordinary course of business to the Department of Justice Bureau of Forensic Services, where it was analyzed in compliance with Title 17 of the California Code of Regulations. Using equipment in proper working order, the analysis result was ethyl alcohol blood.05 percent.”
Nor did defendant challenge the variables used to calculate his blood alcohol level—his weight, the time of the test, the time of the collision, and the result of the blood test.
Incidentally, although defendant claimed that he had two bowls of stew before the collision and walked for some time after the collision, defense counsel never claimed that defendant’s food intake or exercise compromised the criminalist’s calculation, perhaps because food and exercise would have lowered the defendant’s morning alcohol concentration, suggesting an even higher concentration at the time of the collision than that extrapolated by the criminalist.
Defendant’s chief challenge to the blood alcohol evidence is the claim that he drank two beers before his arrest. However, this claim is not in keeping with facts offered by the criminalist. The criminalist testified that each standard 12-ounce beer—the kind defendant claimed he drank—would raise blood alcohol level maximally by 0.02 percent. Defendant claims he drank three beers of standard size and alcohol content between 7:30 and 9:30 the night of the accident. With nothing more to drink after 9:30 p.m., defendant would have burned off the previous night’s alcohol by 6:30 the next morning, even assuming the slowest absorption time and the lowest burn-off rate. If, as this analysis indicates, defendant began with a clean slate the morning after the accident, the two beers he claimed he drank in the morning would have raised his blood alcohol “maximally” to only 0.04 percent—and less if the alcohol had either not been fully absorbed or had begun to burn off. The two beers in the morning, therefore, do not explain his blood alcohol content as of noon that day.
According to the criminalist, alcohol is absorbed into the bloodstream between five minutes and three hours from when it is consumed, and burn off occurs at a rate of 0.01 to 0.025 percent per hour.
As for whether the “proper” burn-off rate was utilized, we find this to be the wrong question, since the criminalist did not choose a single burn-off rate, but used a range. Perhaps the question is whether the criminalist’s range captures beyond a reasonable doubt defendant’s particular burn-off rate. It appears to, since the boundaries of the range are the lowest and highest rates the criminalist has seen in the literature on alcohol elimination.
Given this analysis, we believe that there is no reasonable probability that a jury following the second directive of CALJIC No. 2.01 would have concluded, even on a review of the blood alcohol evidence alone, that each of the facts essential to show intoxication was not proved beyond a reasonable doubt.
Additionally, we believe that a jury following the second and third directives of CALJIC No. 2.01 would likely have concluded that the blood alcohol evidence was not equally compatible with innocence. Defendant offers only one innocent explanation of the blood alcohol evidence—that he drank two beers the morning of his blood draw—and, as explained above, that evidence is not credible.
Defendant also argues on appeal that the failure to give CALJIC No. 2.01 “magnified [the] danger” that the jury would use the defendant’s previous DUI convictions as evidence that he had been driving under the influence at the time of the collision. However, the jury was instructed that defendant’s prior convictions should be used only as evidence of implied malice. We are advised by the Supreme Court that “‘“[t]he rule that juries are presumed to follow their instructions... represents a reasonable practical accommodation of the interests of the state and the defendant”’” and should be followed by a reviewing court. (People v. Harris (1994) 9 Cal.4th 407, 426.) Thus, we must presume that either with or without CALJIC No. 2.01, the jury applied the evidence of prior convictions only to the implied malice question as instructed.
3. Conclusion
We do not believe it is reasonably probable that a result more favorable to defendant would have been reached had CALJIC No. 2.01 been given, and we therefore conclude that the court’s error in failing to instruct the jury with CALJIC No. 2.01 was harmless.
IV. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Miller, J.