Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA074705, Tomson T. Ong, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Christina Sajor-Reeder appeals from a judgment of conviction entered after a jury trial. The jury found her guilty of second degree murder (Pen. Code, § 187, subd. (a)) and child abuse (id., § 273a, subd. (a)). The trial court sentenced her to state prison for an indeterminate term of 15 years to life plus a consecutive determinate term of one year and four months.
On appeal, defendant claims evidentiary and instructional error and insufficiency of the evidence to support her murder conviction. We disagree and affirm the judgment.
FACTS
A. Prosecution
1. Prior Incidents
At about 7:20 p.m. on June 19, 2003, defendant was driving her pickup truck north on Valley View Street in Cypress. At the Orange Avenue intersection, defendant attempted to make a U-turn from one of the left lanes and her truck struck the rear of a car in the left turn lane.
Corona Police Officer Timothy Najmulski responded to the scene. He interviewed defendant, who did not appear to be under the influence of drugs or alcohol and who did not exhibit any unusual behavior. While both vehicles sustained moderate damage, they could be driven out of the intersection. Defendant told Officer Najmulski that she did not need a tow truck and would try to have someone drive her truck away.
About an hour and a half later, Cypress Police Officer Brian Healy received a report of a pickup truck sitting in a left turn lane on Valley View Street at Lemon Avenue for about 20 minutes. He drove to the intersection, stopped behind defendant’s truck in the left turn lane and activated his overhead red light. When the light turned green, defendant drove through the intersection. Officer Healy turned on his emergency lights in an effort to get defendant to pull over. She began to pull over but then continued driving. She drove at about 30 miles per hour, under the speed limit. Officer Healy activated his rotating lights and siren, but defendant continued driving for about seven miles, through several red lights, until she ran over spike strips laid down by the police.
Defendant got out of the truck and began repeating, “just shoot me.” Officers told her to put her hands up and lie down on the ground, but she refused to comply. Eventually, they shot her in the forehead with pepper balls, and she fell to the ground. She was arrested and taken to the police station. During a subsequent interview, Officer Healy asked her why she failed to stop. She said she was so upset that she wanted to die, because her mother only loved money. Officer Healy asked her why she endangered other people by running red lights. She said she did not care, she just wanted to run away. He asked if she still wanted to die, and she said she did not and began to cry.
In 2004, defendant was hospitalized in a psychiatric ward after threatening to kill her husband and her month-old daughter, Gabriella.
2. June 14, 2007 Incident
About 9:14 p.m. on June 14, 2007, defendant was driving her SUV on East Wardlow Road. Two-year-old Gabriella was in a child seat in the back seat. Defendant had the interior lights on and her window rolled down. She was driving 50 plus miles per hour in a 35 mile per hour zone and swerving back and forth. Additionally, she was screaming unintelligibly. She was not watching the road but looking toward the passenger or back seat and waving her right hand in that direction.
At the Clark Avenue intersection, Michael Durain (Durain) and his mother, Phyllis Johnson (Johnson), were in a Saturn, stopped in the left turn lane at a red light. Defendant did not slow or stop at the intersection and crashed into the rear of the Saturn. The Saturn slid across the intersection. Defendant’s SUV slid across the intersection in the other direction, went over a curb and came to rest against a golf course fence.
Defendant got out of the SUV, looked at the back seat, then walked away and sat down on the grass. Gabriella was still in her child seat, crying.
Long Beach Police Officer Edward Bonachea was stopped at the red light when he heard the crash and saw the SUV “shooting across” the intersection and crashing into the fence. He activated his emergency lights and parked his car. He approached defendant, who was yelling and flailing her arms in the air. He asked if she was alright, but she did not respond. He then checked inside the SUV and saw Gabriella, waving her arms and legs and crying hysterically.
Someone approached Officer Bonachea and told him there was a car down the street that had been cut in half. After determining that Gabriella had not been seriously injured, he ran toward the Saturn. Long Beach Police Officers Ronald Boandl, Michael Erdelji and Robert Nevel, helicopter pilots returning from lunch in an unmarked police car, received a call for assistance and arrived at the scene. They continued on to the SUV and parked their car.
When Officer Bonachea arrived at the Saturn, it was so badly damaged he could not tell which end of the car he was looking at. He heard Durian calling for help for himself and his mother. Durian was pinned in the driver’s seat, unable to move. Johnson was in the passenger seat, and Officer Bonachea could tell almost immediately that she was dead. Officer Bonachea stayed with Durian until the paramedics arrived.
As Officers Boandl, Erdelji and Nevel approached the SUV, they saw defendant face down on the ground, screaming loudly, kicking her legs and pounding her arms on the ground. The officers asked if she was alright, but she did not respond and continued screaming. As they attempted to get her attention, they heard a child’s muffled screaming coming from underneath her. Officers Boandl and Nevel pulled defendant off Gabriella and sat her down on the grass. Defendant sat there mumbling; Gabriella was crying and screaming. Defendant reached over and grabbed Gabriella, then held her and appeared to be trying to comfort her. The officers moved defendant, who was carrying Gabriella, over to the curb and sat her down. A few seconds later, defendant placed Gabriella face up in water that was in the gutter next to the curb. She then crawled on top of Gabriella and appeared to be trying to drown or suffocate Gabriella. The officers pulled her off the child and sat her down on the grass. Officer Nevel took Gabriella to a patrol car and stayed with her. Defendant began to calm down, but she was talking to herself.
Gabriella was taken to the hospital and checked for injuries. She suffered seat belt bruises to her shoulders but no other injuries.
Long Beach Police Officers Michael Mazzoni, Manuel Lopez and Jonathan Pope responded to the scene. Officers Mazzoni and Lopez made a sketch of the scene. They observed no skid marks at the site of the impact, indicating that defendant did not apply her brakes before the accident. The Saturn came to rest about 350 feet from the impact site, and the SUV came to rest about 205 feet from the site.
Officer Pope escorted defendant to his police car. He asked her how the accident occurred. She responded, “I was going 40 on the green light.” He took her to the hospital for examination and treatment.
Long Beach Police Officer Gamarieo Collazo of the D.U.I. Team Field Support Division evaluated defendant at the hospital to determine if she was driving under the influence of drugs or alcohol. During the evaluation, she made strange comments; she told him that she was not looking at his “power boxes.” Officer Collazo told defendant that someone in the other car had died in the crash. She was upset and said that she had not meant for anyone to die or get hurt.
No drugs or alcohol were found in her system.
Defendant told Officer Collazo that she was bipolar and had taken her medication earlier in the day. She said she and Gabriella “were cruising and we ended up here.” She then waived her constitutional rights. Officer Collazo asked her what happened and she responded, “I had the right of way.” She said she had been driving at the speed limit but the other car was speeding.
Defendant then told the officer that at 4:00 or 5:00 p.m., she had gone to Stater Brothers Market in Tustin to buy pasta. She was driving toward Irvine but ended up in Long Beach. He asked where she was for four or five hours, and she said she was driving. She said, “I didn’t know the street I know I had the green light and the car appeared out of nowhere.” She swerved to avoid it and hit a tree and a fence. Then she said, “I was afraid my baby was hurt, I’m supposed to die first, not my baby.” She added that guardian angels had taken her baby out of the SUV. She also admitted that she was not looking when she hit the car and she did not see people in the car. When Officer Collazo told her she was being charged with manslaughter, she became upset.
Officer Pope took defendant to the county jail for booking. Although defendant was generally cooperative, at one point she banged her head against a concrete wall for about 30 seconds.
For the first four days that defendant was in jail, she did not receive her medication. She placed toothbrushes in her vagina, removed all her clothing and urinated on herself. She took water out of the toilet and rolled around in it. She was then given a blue plastic poncho to wear, moved to a safe cell and placed on suicide watch. She took the Velcro that held the poncho in place and used it to rub the skin off her forehead.
Long Beach Detective Oscar Dennison was assigned to investigate the case. On June 18, he went to the jail. He determined that defendant should be taken to Harbor General for a psychiatric evaluation. She was at the hospital for two hours then released and sent home.
The police rearrested defendant on June 19. She was cooperative during her arrest and booking.
Jacqueline Sajor (Sajor), defendant’s niece, knew that defendant was bipolar and family members had discussed with her the importance of taking her medicine. Sajor believed that defendant understood the importance of taking her medication; that if she did not take it, something bad could happen. After the accident, Sajor checked defendant’s prescription bottles to see if defendant had been taking her medication. Defendant had refilled her prescriptions for Haldol, Seroquel and Benztropine on June 13 and she had not taken any pills from the bottles.
Sajor could tell when defendant had not been taking her medication. Defendant would stay awake and call her repeatedly late at night to gossip. Defendant would be “ecstatic,” “hyper,” “excited,” and “all over the place.” After a period of time, she would get depressed or sad. For four or five nights prior to the accident, defendant called her late at night. Sajor did not answer the phone, because she had to go to school the following mornings.
Johnson died from thoracic trauma as a result of the accident. Durian suffered two fractured vertebrae in his neck, three fractured ribs, and his right arm was severed. For two and a half months, his head was kept in a metal halo which was screwed into his skull. He was in a wheelchair for six months. It took nine months of physical therapy for him to regain use of his right hand. He suffered ringing in his ears and memory loss due to the accident. He also was unable to return to work as a plumber and continued to receive physical therapy at the time of trial.
B. Defense
Defendant testified on her own behalf. She has bipolar disorder and took Haldol, Benztropine and Seroquel every evening. When she stopped taking her medication, she would go through a high energy phase. She would get depressed if there was “a compilation of negative events.”
As to the 2003 incident, defendant explained that at the time, she was homeless and living in her truck. Her husband was dating a woman she knew. She was depressed about her life in general. She had visited her mother earlier in the day and given her a Mother’s Day card. Her mother was only interested in seeing if there was money in the envelope. After she left her mother, she got into an accident.
She was sitting in the left turn lane. Someone approached her and asked if she was alright. She made a U-turn and began driving. She continued driving after the police ordered her to stop and ran several red lights. She knew she was driving dangerously, but she felt suicidal. After she was forced to stop, the police shot her with a pepper ball because she told them to shoot.
Defendant was happy after Gabriella’s birth in 2004. However, she suffered from postpartum depression. At her husband’s urging, she checked herself into the hospital and stayed about two weeks.
On the day of the accident, defendant stayed home with Gabriella. Her father came over to fix a door, then a friend came over with her daughter. Sometime between 5:00 and 6:00 p.m., defendant dressed Gabriella and drove to the Stater Brothers market in Tustin to buy food for dinner. After that, she drove to McDonald’s and bought an ice tea. She then decided to go “cruising” and drove for several hours.
Defendant ended up in Long Beach but did not know where she was or remember how she got there. As she approached the intersection of Wardlow Road and Clark Avenue, she began to look for a gas station and for a place to make a U-turn, so she could turn around and go home. She stopped at a red light at the intersection. When the light turned green, she accelerated to 40 miles an hour. Suddenly a car drove in front of her SUV. She did not know what to do. She screamed, shook her hands and looked back at Gabriella. Her SUV collided with the other car and the air bag deployed. Her SUV veered away, jumped the curb and hit a tree and a fence.
Defendant got out of the SUV. She went to the rear door to get Gabriella. She was gasping for air. Someone came over to her, asked if she was alright and got Gabriella out of the SUV. She lay down on the grass behind the SUV, reached for Gabriella and hugged and kissed her to comfort her. She did not remember seeing a police officer there.
Defendant then picked up Gabriella and walked toward the police officers who were standing in the street. She did not lay Gabriella down in the gutter. One of the officers asked if he could take Gabriella, and defendant handed her to him. She asked if he was going to put Gabriella in foster care, and the officer nodded. Another officer asked if he could call her father. She told him to call “Tati” on her cell phone and asked him to call Jackie, her lawyer. One of the officers asked her to walk a line. She was too shaken up and said that she could not do it.
Defendant knew that speeding was dangerous and could kill someone, so she would never drive recklessly at a high rate of speed on surface streets. Additionally, she loved Gabriella and would never do anything to hurt her. She was not trying to kill herself or Gabriella. She also knew that she had to take her medication; if she did not, something bad might happen.
After defendant was taken to jail, she told officers she needed her medication, but she did not receive it. She urinated on herself because she was too scared to ask where the bathroom was. When two officers tried to drag her from the place where she had urinated, she was too weak and overwhelmed to move, so she said she was not going to get up. She rubbed her forehead with Velcro to punish herself for “cruising.”
Dr. Barry Hirsch is a forensic psychologist. He reviewed defendant’s medical records and police reports, and he met with defendant on two occasions.
Defendant was diagnosed with bipolar disorder when she was 24 years old. She has auditory and visual hallucinations and a propensity for psychotic thinking. She has been hospitalized for treatment numerous times.
Defendant takes Haldol, Seroquel and Cogentin. Haldol is an anti-psychotic medication. Seroquel is both anti-psychotic and anti-manic. Cogentin suppresses side effects of the other two medications. Defendant is only marginally responsive to the medications; they do not completely control her symptoms.
Dr. Hirsch noted that defendant consistently denied having any mental illness or needing medication. He did not believe that when defendant was in a psychotic state she was aware of it.
It was Dr. Hirsch’s opinion that defendant was in a psychotic state at the time of the accident. Based on witnesses’ descriptions of her behavior and statements, he believed that she was hallucinating at the time of the accident, even though she denied it. Looking at her behavior at the scene of the accident, Dr. Hirsch was unable to tell if it was due to trauma or mental illness.
Dr. Hirsch acknowledged that psychotic people can understand what is happening around them, even if they are hallucinating. Moreover, even if they are delusional, they may be able to understand right and wrong.
DISCUSSION
A. Admission of Evidence Regarding Prior Incidents
Prior to trial, defendant moved to exclude evidence of the prior incidents on two grounds. First, she claimed it was inadmissible under Evidence Code section 1101, subdivision (a), as prior conduct not amounting to a felony and not involving moral turpitude. Second, she objected to use of the evidence or argument that she was suicidal at the time of the charged offenses. She noted that her recent medical records showed that she was not suicidal.
The prosecutor responded that pursuant to People v. Watson (1981) 30 Cal.3d 290, it was necessary to show defendant was suicidal in order to prove that she was guilty of murder. He added that there was evidence to support a finding that she was suicidal. The evidence of the prior incidents was relevant to prove her state of mind.
The trial court ruled the evidence was admissible under Evidence Code section 1101, subdivision (b), as evidence of defendant’s mental state. It also ruled the evidence more probative than prejudicial under Evidence Code section 352.
Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions, admission of “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct)... when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of section 1101 provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.”
Admission of evidence pursuant to Evidence Code section 1101, subdivision (b), is confided to the sound discretion of the trial court. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.) Its decision to admit such evidence will not be disturbed on appeal absent an abuse of discretion. (Id. at p. 1610; see, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
Even if evidence is admissible pursuant to Evidence Code section 1101, subdivision (b), it should be excluded if its effect is more prejudicial than probative. (Evid. Code, § 352; People v. Balcom (1994) 7 Cal.4th 414, 426-427; People v. Ewoldt, supra, 7 Cal.4th at p. 404.) In determining whether relevant evidence nonetheless should be excluded, a number of factors must be considered. The principal factor is the tendency of the evidence to prove the existence of a common plan or scheme. (Ewoldt, supra, at p. 404.) Other factors include the source of the evidence, i.e., whether it is independent of the source of the evidence of the charged offenses, the age of the uncharged offenses, the inflammatory nature of those offenses, and whether or not the defendant was punished for those offenses. (Id. at pp. 404-405; see also Balcom, supra, at p. 427.)
People v. Watson, supra, 30 Cal.3d 290 holds that facts which support a charge of vehicular manslaughter will also support a charge of second degree murder if there is evidence from which malice may be implied. (Id. at pp. 299-300.) The necessary “malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.” (Id. at p. 300.)
In Watson, the court concluded there was evidence from which malice could be implied, in that defendant drove to an establishment where he consumed enough alcohol to raise his blood alcohol level to the point of legal intoxication; he must have known he would have to drive home and that driving in his condition was hazardous. He then drove on city streets at highly excessive speeds, which in itself created a great risk of harm or death. He ran a red light, nearly collided with another vehicle, then continued driving at an excessive rate of speed until he collided with the victims’ car. (People v. Watson, supra, 30 Cal.3d at pp. 300-301.)
Since Watson, “courts have recognized repeatedly that a motor vehicle driver’s previous encounters with the consequences of recklessness on the highway—whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such life-threatening conduct.” (People v. Ortiz (2003) 109 Cal.App.4th 104, 112.) Thus, evidence of prior instances of reckless driving and its consequences may be admitted to show the defendant’s awareness of the dangers of such conduct. (Id. at p. 116.)
Pursuant to Watson, defendant’s mental state and knowledge were at issue. The evidence of her prior accident and its aftermath was relevant to show that defendant was aware of the dangers of driving in a reckless manner. The evidence showed that Officer Healy asked her why she endangered other people by running red lights, and she said she did not care. That is, defendant knew the dangers of driving recklessly but did so “with a wanton disregard for human life.” (People v. Watson, supra, 30 Cal.3d at p. 300.)
Additionally, the consequences of reckless behavior “do not take place in a vacuum.” (People v. Ortiz, supra, 109 Cal.App.4th at pp. 112-113.) Defendant was admittedly suicidal at the time of the prior incidents. She was on medication for bipolar disorder and was aware that when she did not take her medication, bad things could happen. Considering all the circumstances, evidence of the prior incidents could show that defendant was aware of the dangers of driving with her mood unchecked by her medication, i.e., if she drove while off her medication there was a risk she would be depressed and suicidal and drive in a reckless manner with no concern for the safety of others. (See id. at p. 115, citing People v. David (1991) 230 Cal.App.3d 1109, 1114-1115.)
Defendant points out that there was no evidence that she was suicidal at the time of the current offenses, so evidence of the prior incidents did not explain her behavior when she committed the current offenses. As we discuss more fully below, there is no requirement that the offenses be similar or that defendant’s state of mind have been the same both times. The question is whether evidence of the prior incidents demonstrated that defendant had an awareness of the dangers of reckless driving. Whether the reckless driving resulted from being suicidal or being off her medication is not the determining factor.
Contrary to defendant’s argument, the fact that she was not ordered into rehabilitation after the prior incidents does not preclude admission of evidence of the incidents to prove knowledge. Being ordered into rehabilitation would “sensitize[] [defendant] to the dangerousness” of her actions. (People v. Ortiz, supra, 109 Cal.App.4th at p. 112.) But it is not the only means by which defendant would learn to appreciate the dangerousness of her actions. (See id. at pp. 112-113.)
Additionally, that the prior incidents and the instant offenses were dissimilar does not mandate exclusion of the evidence. Similarity is required when evidence of prior offenses is admitted to prove identity or common plan or scheme. (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) When evidence of the prior offenses is admitted to prove an awareness of risk, the question is not whether the circumstances of the prior and current offenses are similar but whether the prior offenses were sufficient to apprise the defendant of the risk created by his or her behavior. (See People v. Ortiz, supra, 109 Cal.App.4th at p. 114, citing People v. Olivas (1985) 172 Cal.App.3d 984, 988.)
Accordingly, we conclude that the evidence of the prior incidents supported an inference that, at the time of the current offenses, defendant had knowledge of the dangers of her actions but acted with a wanton disregard for human life. For this reason, it was admissible under subdivision (b) of Evidence Code section 1101.
The question remains whether the trial court erred in concluding it was more probative than prejudicial and declining to exclude it under Evidence Code section 352. That section gives the trial court the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We will not disturb the trial court’s exercise of its discretion on appeal unless the court has abused its discretion (People v. Minifie (1996) 13 Cal.4th 1055, 1070), i.e., if its decision exceeds the bounds of reason (People v. DeSantis (1992) 2 Cal.4th 1198, 1226).
In the context of Evidence Code section 352, prejudicial evidence is that “‘which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Defendant argues that evidence of the prior incidents was prejudicial “because it told the jury that [she] was dangerous by virtue of her bipolar disorder and mental illness.” In that respect, evidence of the current offenses was far more prejudicial. Instead of leading the police on a slow speed chase and claiming she wanted to die, defendant barreled through city streets at a high rate of speed, screaming unintelligibly. She crashed into a car stopped at a red light, demolishing it, seriously injuring the driver and killing the passenger. Then she twice appeared to be trying to smother her daughter by lying on top of her. Compared to these actions, her previous actions were far less likely to evoke an emotional bias against her. We therefore find no abuse of discretion In refusing to exclude evidence of the prior incidents under Evidence Code section 352. (People v. Bolin, supra, 18 Cal.4th at p. 320; People v. DeSantis, supra, 2 Cal.4th at p. 1226.)
B. Sufficiency of the Evidence to Prove Second Degree Murder
In assessing the sufficiency of the evidence to support a conviction, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Defendant argues that there was insufficient evidence to prove that she had the requisite malice aforethought. Specifically, she claims there is no evidence she was suicidal at the time of the accident or that she drove recklessly because she had failed to take her medication. We disagree.
There is no question that defendant was driving recklessly. Witnesses saw her driving at a high rate of speed, swerving from the curb to the median, not watching the road but looking toward the passenger or back seat while screaming and waving her right hand. She did not swerve or brake before hitting the Saturn at the intersection of Wardlow Road and Clark Avenue.
Additionally, there was evidence defendant knew reckless driving created a risk of injuring others. Her comments at the time of her 2003 arrest, that she did not care that she endangered people by running red lights, showed an awareness of the dangers of reckless driving. Her comments following the accident which resulted in the current charges also showed an awareness of the danger of her actions. She acknowledged to Officer Collazo that she was not looking at the car at the time of the accident. She also told him that she had not meant for anyone to die or get hurt. However, she gave him explanations regarding the cause of the accident that appeared to be an attempt to deny responsibility for the accident; she claimed that she was driving at the speed limit and had the right of way, and the other car was speeding and came out of nowhere, and she had to swerve to avoid it.
Sajor’s testimony that defendant had not taken any pills from her new prescription bottles does not support a finding that she was not taking her medication. However, Sajor also testified as to defendant’s behavior when she was not taking her medication: Defendant would be “ecstatic,” “hyper,” “excited,” and “all over the place”; she would stay awake and call Sajor repeatedly late at night to gossip. Sajor testified that for four or five nights prior to the accident, defendant called her late at night. Even though Sajor did not talk to defendant, the fact of the repeated late night calls suggests that defendant was not taking her medication.
Added to this testimony was evidence of defendant’s behavior prior to the accident. She went to the store to buy pasta but ended up driving around for four or five hours, not knowing where she was. Just prior to the accident she was speeding and driving wildly while screaming unintelligibly and waving her hand toward the passenger or rear seat. Dr. Hirsch opined that the evidence indicated that defendant was in a psychotic state at the time of the accident. Based on the evidence, it is reasonably inferable that defendant was not taking her medication at the time of the accident.
Malice may be implied “‘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....’” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.) Here, defendant knew the dangers of driving recklessly, and she knew the dangers of failing to take her medication. She failed to take her medication, got behind the wheel of her SUV and was driving in a reckless manner, speeding, weaving and not looking at the road. After hitting the Saturn with great force, she showed no interest whatsoever in the fate of the passengers of that vehicle. As was the case with the prior incidents, defendant did not care about what happened. (People v. Olivas, supra, 172 Cal.App.3d at p. 988.) There is sufficient evidence to support a finding of implied malice.
C. Failure to Instruct on Defense of Unconsciousness
Defendant contends the trial court had the duty to instruct the jury sua sponte on the defense of unconsciousness. In a criminal case, the trial court has a duty to instruct the jury sua sponte as to the principles of law relevant to and governing the case. This duty includes the duty to instruct on defenses where it appears the defendant is relying on those defenses or there is substantial evidence supportive of the defenses. (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds in Breverman, supra, at p. 165.)
To the extent the trial court has a sua sponte duty to instruct on crimes or defenses, a claim of error in the failure to instruct is not forfeited by the failure to raise it below.
Unconsciousness “is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting.’” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) Where defendant presents substantial evidence of unconsciousness, it is error not to instruct the jury on the defense. (Ibid.)
We agree with defendant that there is ample evidence that, at the time of the accident, she was mentally impaired; she may have been in a manic or psychotic state, with auditory or visual hallucinations. This does not mean that she was unconscious of her actions, however. Her statements after the accident showed she knew she had been driving with Gabriella and that she was involved in an accident with another vehicle.
There was evidence that defendant could not remember where she was driving for a period of time. She did state that she was “cruising” with Gabriella, however, indicating that she was aware she had been driving.
In People v. Halvorsen, supra, there was evidence “defendant suffered from bipolar disorder, with symptoms including psychosis and agitation.” (42 Cal.4th at p. 417.) He testified he did not know why he drove from the scene of one shooting to another location, why he shot two of his victims or what they said before he shot them, or what route he took to a third location. (Ibid.) The court held this was insufficient to require an instruction on unconsciousness as a defense. The defendant’s testimony indicated he was aware of his actions during the commission of the offenses. That he could not recall certain events did not mean he was unconscious at the time. (Id. at p. 418.)
Similarly here, the evidence presented did not constitute substantial evidence of unconsciousness, as opposed to mental impairment. That defendant could not recall where she was driving or how she got to Long Beach does not mean she was unconscious at the time. Accordingly, the trial court was not required to instruct on the defense of unconsciousness. (People v. Halvorsen, supra, 42 Cal.4th at pp. 417-418.)
D. Instruction on Child Endangerment
The prosecutor argued to the jury that “this child abuse charge, it covers the speeding, the crash and that behavior on the grass.” Defendant contends the trial court erred in failing to instruct the jury sua sponte that it must agree unanimously as to which act constituted child endangerment: her reckless driving which caused the accident or her attempts to smother Gabriella after the accident.
A defendant has the right to a unanimous jury verdict. (People v. Jones (1990) 51 Cal.3d 294, 321; People v. Napoles (2002) 104 Cal.App.4th 108, 114.) The trial court has a sua sponte duty to give an instruction where defendant committed multiple acts which could have been charged as separate offenses but were not, the prosecutor does not elect a specific act on which to base the charge, and the jurors could disagree as to which act defendant committed but still convict her of the crime charged. (People v. Maury (2003) 30 Cal.4th 342, 422-423; People v. Riel (2000) 22 Cal.4th 1153, 1199.) The instruction need not be given where “the acts alleged are so closely connected as to form part of one transaction,” “‘the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’” (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)
It is the People’s claim that this is a case in which “the child abuse charge was based on the totality of circumstances involving endangerment to Gabriella,” therefore a unanimity instruction was not required. Defendant contends that she had different defenses to each of the acts and thus a unanimity instruction was required: her driving was the result of her “impaired perception,” while her subsequent acts were an attempt to console Gabriella and misinterpreted by the officers at the scene.
Assuming arguendo that defendant is correct, that a unanimity instruction should have been given, we find any error in failing to give it harmless beyond a reasonable doubt. In finding defendant guilty of second degree murder, the jury necessarily found that defendant deliberately performed acts which were dangerous to human life. (CALJIC No. 8.31.) Those acts were performed while defendant was driving her SUV, and Gabriella was in the back seat. After the accident, the evidence is undisputed that Gabriella was in the SUV, crying hysterically. Moreover, according to defendant, her subsequent actions were an attempt to comfort Gabriella. Thus, there is no evidence from which the jury could have found defendant guilty of second degree murder but not have found unanimously that defendant, under circumstances likely to produce great bodily harm or death, willfully inflicted unjustifiable physical pain or mental suffering on Gabriella by the way in which she was driving (CALJIC No. 9.37). (See, e.g., People v. Riel, supra, 22 Cal.4th at p. 1199; People v. Vargas (2001) 91 Cal.App.4th 506, 562.)
There is a split of authority as to whether the federal standard (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]) or the state standard (People v. Watson (1956) 46 Cal.2d 818, 836) of prejudice applies. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186.) We need not decide which standard to use, because even under the more rigorous federal standard, the error was harmless.
The trial court used CALJIC to instruct the jury in this case.
It was not necessary to defendant’s conviction that Gabriella have suffered actual bodily injury. (CALJIC No. 9.37.) That Gabriella did not suffer severe injury was due to the fact that defendant struck a smaller, less sturdy vehicle rather than due to any care on defendant’s part.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.