Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWF021187, Michele D. Levine, Judge.
Gilbert R. Geilim for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
On April 28, 2007, defendant Leodegario Joel Sanchez drank at least 10 beers at a friend’s house. He then drove with his friend on Highway 74 near Menifee with a blood alcohol level of.26. He crossed over the double yellow line and hit Maria Arteaga head on. Defendant and his friend survived the accident, but Arteaga died several hours later from numerous blunt force trauma injuries caused by the accident.
Defendant was convicted of second degree murder and misdemeanor driving without a license.
Defendant now contends,
1. The evidence was insufficient to support his conviction of second degree murder; his conviction should be reduced to voluntary manslaughter.
2. The trial court erred by admitting records of his previous plea agreements to driving under the influence and driving on a suspended license.
3. The trial court erred by giving the flight instruction pursuant to Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 372.
4. The prosecutor violated his constitutional right against self-incrimination by urging the jury to infer guilt from his failure to protest the charges at the time of his arrest.
5. Prosecutorial misconduct warrants reversal of the judgment.
6. Cumulative errors deprived him of a fair trial and due process of law requiring reversal of his convictions.
We conclude there were no prejudicial trial errors, and the evidence supports defendant’s convictions. We therefore affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was found guilty of second degree murder (Pen. Code, § 187, subd. (a)) and misdemeanor driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)). Defendant was sentenced to 15 years to life in state prison for the second degree murder; the misdemeanor sentence was ordered to run concurrent to the second degree murder sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
A. Accident Causing Maria Arteaga’s Death
In the afternoon on April 28, 2007, Aliber Diaz was playing volleyball at a friend’s house. Defendant (whom Diaz had known for two years) was also at the house. Diaz observed defendant drinking beer. Later in the day, Diaz and defendant went to another party in Menifee, and Diaz again observed defendant drinking a beer.
Sometime after 9:00 p.m., defendant asked Diaz if he wanted to go to the store with him. Diaz agreed; he was not concerned about riding with defendant. Defendant “looked fine” and was not stumbling or falling down. Defendant drove his Explorer on Highway 74, which was a four-lane highway. Defendant was not drinking in the car; Diaz did not recall seeing any beer in the car. The last thing that Diaz recalled was that defendant crossed over the double yellow line. They immediately crashed, and Diaz was rendered unconscious. They had been driving for a very short period of time prior to the accident. Diaz had “very, very bad wounds” after the accident and was taken to the hospital.
Vincent Pattarozzi was a tow truck driver and was driving westbound on Highway 74 about 10:00 that night. He arrived at the accident scene after the collision occurred. He immediately got out of his truck and approached the Explorer. Diaz was on the passenger’s side and appeared to be pinned down by the dashboard. Pattarozzi and other persons at the scene helped defendant (who appeared to have been in the driver’s seat, although, since the Explorer ended up on its side, he and Diaz had “piled” up on the passenger’s side) out of the Explorer, and they were able to pull Diaz out from under the dashboard.
When Pattarozzi entered the Explorer to extract Diaz, he saw a case of Corona beer, and the car smelled of alcohol. Some of the beer bottles had broken from the impact of the accident.
Maria Arteaga was in the car that defendant hit, was having difficulty breathing, and was in and out of consciousness.
Christina Wyatt was driving eastbound on Highway 74. She observed the Explorer coming toward her with no lights on. It had crossed the yellow line and was coming at her. She was able to swerve to avoid being hit. Wyatt looked in her rear view mirror and observed defendant hit Arteaga head on.
Wyatt turned around and went back to the scene. She observed the Corona bottles in the Explorer and smelled alcohol on Diaz and defendant.
Patricia Padilla was driving eastbound on Highway 74 with her three-year-old daughter. As she was driving, she saw a car (with its headlights on) driving in the westbound direction coming across the center line and into her lane. It hit the car in front of her. She veered off the road to avoid being hit.
Joseph Guzman was driving westbound on Highway 74 and arrived after the collision occurred. He parked and went to assist the persons in the Explorer. Guzman helped defendant and Diaz out of the car. He smelled alcohol in the vehicle. He also smelled a strong odor of alcohol on the two persons in the vehicle. Defendant left the vehicle and started walking east. Guzman indicated that he was “staggering.” Guzman also went to Arteaga’s vehicle. She was slumped over the steering wheel. She was still breathing.
California Highway Patrol Officer Alan Calica was dispatched to the accident. When he arrived, the two vehicles were blocking traffic in both directions. Defendant’s Explorer was in the eastbound number one lane on its right side; Arteaga’s car was in the westbound number one lane. No one was inside the Explorer. Arteaga’s car was crushed on the entire right side and on the roof. Arteaga was drifting in and out of consciousness.
Officer Calica observed defendant walking eastbound away from the collision scene. He appeared to stumble. Officer Calica contacted defendant. Although defendant spoke in Spanish, he appeared to be slurring his speech. Officer Calica smelled alcohol on defendant’s breath and person and noted that his eyes were red and watery. Based on his training and experience, Officer Calica believed that defendant was intoxicated.
Officer Calica had conducted over 1,000 investigations of incidents of people driving under the influence of alcohol and stated that the common signs of being under the influence were red, watery eyes; slurred speech; impaired balance; and odor of alcohol.
Oscar Valdez also was with the California Highway Patrol. He was dispatched to the accident scene. Officer Valdez spoke with defendant in Spanish. Defendant did not present a valid driver’s license. Officer Valdez ran a check on defendant and found that he had a prior driving under the influence (DUI) conviction. Officer Valdez observed defendant had lacerations on his right elbow and over his right eye. Defendant was placed in the patrol vehicle because he was considered “a flight risk.” Officer Valdez was told by Officer Calica that he observed defendant walking in an easterly direction away from the accident when he arrived.
Officer Valdez noticed that defendant had slurred speech, his eyes were bloodshot and watery, and there was a strong odor of alcohol emanating from the patrol vehicle where he had been placed.
Defendant told Officer Valdez that he had drunk six cans of beer between 5:00 and 9:00 p.m. Officer Valdez conducted a horizontal gaze nystagmus test on defendant. Defendant showed signs of intoxication of at least a.10 blood alcohol content (BAC) based on this test.
Officer Valdez explained that this test measured involuntary jerking of the eyes as the eyes move side to side following an object.
Officer Valdez did not conduct any further field sobriety tests because he felt it was not safe. He noted that Highway 74 was known for “really bad accidents, high speed and... poor vision.” Further, defendant appeared to be “measuring” him “up” in order to leave; he kept looking around at the surroundings and asked to have the handcuffs taken off.
At 11:16 p.m., Officer Valdez administered a preliminary alcohol screening (PAS) test on defendant. He obtained readings of.178,.208 and.221 BAC. Defendant was arrested for DUI at that point. Blood was drawn from defendant at 12:45 a.m.
Maureen Black was a toxicologist. In her experience, someone who was over a.08 BAC would have significant physical and mental impairment so as to not be a safe driver. At a.18 to.20 BAC the person may actually be sedated, but persons experienced with alcohol would be able to drive a car. At.25 BAC, a person would be almost unconscious. Somewhere between.33 and.40 BAC a person could die.
Black tested the blood sample taken from defendant. In two tests, she received results of a.22 and a.21 BAC. Based on the time delay from the time defendant was driving and the time the blood sample was taken, he likely had a.26 BAC at the time he was driving. It would take at least ten 12-ounce beers to achieve this BAC. In Black’s opinion, defendant’s driving would have been impaired.
Arteaga died at the hospital from multiple blunt force injuries caused by the accident.
B. Prior DUI Incident
Alhambra Police Detective Ruben Soriano was working patrol in the city of Alhambra around midnight on February 18, 2003. As he was driving on one of the main streets in Alhambra, he saw a Jeep Cherokee driven by defendant coming toward him at a high rate of speed. He made a U-turn and followed the vehicle. He determined defendant was traveling at 70 miles per hour in a 30 miles per hour zone.
Detective Soriano activated his red light to initiate a traffic stop, but defendant did not stop. The officer then turned on his siren. After several blocks, defendant turned into a parking lot and ran into a concrete block.
Defendant was unable to provide a valid driver’s license. He exhibited watery, bloodshot eyes and had slurred speech. He also smelled like alcohol. Defendant denied he had been drinking. He performed poorly on the field sobriety tests. He was administered a PAS test. On two tests, he registered a.23 BAC. Defendant was taken to the police station and administered a breath test. The results of the two tests were.12 and.14 BAC. Detective Soriano indicated that it was common for the PAS and breath tests to yield different results.
Defendant presented no evidence on his behalf.
III
SUFFICIENCY OF THE EVIDENCE OF SECOND DEGREE MURDER
Defendant contends there was insufficient evidence of implied malice to support his conviction of second degree murder and that his conviction should be reduced to involuntary manslaughter.
A. Standard of Review
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
B. Analysis
“Murder is the unlawful killing of a human being... with malice aforethought.” (Pen. Code, § 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied[] when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart....” (Pen. Code, § 188.)
“At least since 1981, when our Supreme Court affirmed a conviction of second degree murder arising out of a high speed, head-on automobile collision by a drunken driver that left two dead, California has followed the rule in vehicular homicide cases that ‘when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied....’ [Citation.] In such circumstances, ‘a murder charge is appropriate.’ [Citation.] So called implied malice second degree murder... is 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.] Phrased in a different way, malice may be implied when [a] 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.’ [Citation.] ‘[A] finding of implied malice,’..., ‘depends upon a determination that defendant actually appreciated the risk involved, i.e., a subjective standard.’” (People v. Ortiz (2003) 109 Cal.App.4th 104, 109-110, italics & fn. omitted.)
Some of the factors other courts have found support implied malice are as follows: “(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.” (People v. Autry (1995) 37 Cal.App.4th 351, 358; see also People v. Talamantes (1992) 11 Cal.App.4th 968, 973.)
Here, defendant’s BAC at the time he was driving was.26. This was over three times the legal limit. The toxicologist testified that this level of BAC would render a person almost unconscious. Witnesses testified that defendant was “staggering” or stumbling away from the accident scene. Based on this factor, the jury could reasonably infer that defendant knew he was highly intoxicated and chose to drive regardless of the risk this posed to others.
Moreover, defendant was keenly aware of the dangers of drunk driving. When he was arrested on the prior DUI, he was driving at an excessive speed and eventually crashed into a concrete parking barrier. The jury could reasonably infer that defendant, having previously been in an accident while driving drunk, should have been well aware of the risks of driving while intoxicated and chose to do so with wanton disregard for human life.
Additionally, defendant engaged in highly dangerous driving. Not only did defendant almost hit other drivers, he also crossed completely over the double yellow line and hit Arteaga.
Finally, defendant was aware of the dangers of driving under the influence. He had been warned that, if he drove drunk again, he could cause the death of other persons and could be charged with murder. As set forth, post, this evidence was properly introduced to show implied malice.
Defendant relies on testimony from Diaz that defendant was fine and did not commit any driving irregularities prior to the accident. However, Diaz testified that he and defendant had been friends for two years. Further, other witnesses testified that defendant was stumbling or staggering away from the collision scene. The jury could reasonably reject Diaz’s testimony, finding he was biased in favor of defendant.
Defendant contends that his advisement of plea form that warned him of the dangers of driving under the influence was in English, and he speaks only Spanish. He asks this court to consider that that plea was likely taken in “a crowded courtroom in Los Angeles where the court was hurrying from one case to another and everything was done very quickly. It is quite likely that everything that was said in court on the date of [defendant]’s plea was one big blur in [defendant]’s mind because the entire incident concluded so quickly.” He further argues that he could not read the form and “would not likely have taken a copy” home to remind him of the admonishments.
Defendant’s argument relies on evidence clearly outside this record and is speculation at best. As we find, post, the plea terms were properly introduced and could be relied upon by the jury to find that defendant harbored implied malice at the time he drove his Explorer head on into Arteaga. Defendant never objected to the admission of the plea forms, even though invited to do so by the trial court.
Finally, defendant argues that any evidence that he was to have taken a class on alcohol awareness could not support the verdict because he did not take the class. However, that was clear to the jury, as they received exhibit 7 showing that he did not take the class. This evidence properly could support the verdict. Moreover, even without this evidence of the terms of the plea agreement, the jury could infer defendant’s implied malice from his dangerous driving, the oral testimony of his prior DUI, and his high BAC.
Reviewing the evidence in the light most favorable to the judgment, we conclude the jury could find that defendant appreciated the dangers of his actions and drove with conscious disregard for human life to support implied malice and find him guilty of second degree murder.
IV
ADMISSION OF PREVIOUS CONVICTIONS
Defendant contends on several grounds that the trial court erred by admitting previous court records of his plea agreements in two prior cases.
A. Additional Factual Background
Prior to trial, the People brought a motion to admit evidence of prior plea agreements entered into by defendant. The People argued the certified records were subject to judicial notice under Evidence Code section 1530. The People also argued that the evidence that defendant suffered prior convictions for DUI and driving on a suspended license were relevant under Evidence Code section 1101, subdivision (b).
The documents the People sought to introduce were exhibit 6, which was a plea agreement to the prior DUI entered into by defendant on March 1, 2006. As part of the plea agreement, he was admonished and initialed, “I understand 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 my driving, someone is killed, I can be charged with murder.” The plea form was signed by defendant, his counsel, and a Spanish interpreter.
Exhibit 7 contained several minute orders from the above plea agreement. In addition, it included a minute order from March 29, 2006, where defendant was ordered to enroll in an alcohol program and show proof of enrollment. Another minute order showed he had failed to comply with the enrollment order.
Exhibit 8 was a plea to a prior driving on a suspended license charge (Veh. Code, § 14601.5, subd. (a)) entered into on February 28, 2006.
A hearing on the People’s request was held prior to trial. The trial court tentatively ruled that the prior DUI and suspended license convictions, along with the probation terms, would be presented to the jury under both theories, as the convictions were relevant to implied malice and the knowledge element of the implied malice element of murder and were admissible to show intent and knowledge under Evidence Code section 1101, subdivision (b).
Defendant argued his prior conviction for driving on a suspended license did not show that he had any knowledge about the dangerousness of future driving. He admitted the prior DUI might be admissible, but the probation terms were not admissible because there was no proof he had attended an alcohol program or knew the substance of the program. The People responded that the prior suspended license conviction was relevant to the current charge of violating Vehicle Code section 12500. No other argument was made by defendant.
The trial court reiterated that the prior DUI was admissible under Evidence Code section 1101, subdivision (b). It ruled that the circumstances surrounding the prior DUI were admissible and relevant and that their probative value “greatly exceeds the prejudicial impact.” It then found that the suspended license prior conviction and the probation term of attending a class on the dangers of alcohol and driving were relevant to the instant charges. The trial court also found that exhibits 6, 7, and 8 were subject to judicial notice.
At the end of the case, the trial court addressed an off-the-record discussion between the parties. The trial court reiterated that exhibits 6, 7, and 8 had not been introduced through witnesses but were being judicially noticed. The records were authenticated by virtue of being official records of the Los Angeles Superior Court. No testimony was required on the mode of preparation. The trial court noted that the burden had shifted to defendant to show that the documents were not trustworthy and that defendant had presented no evidence or objection to the documents. The trial court stated, “In addition, the Court would note that business records such as these are not testimonial....” The jury would be allowed to review the records.
The trial court advised the jurors that exhibits 6, 7, and 8, were being admitted based on judicial notice because they were court documents. The jurors were admonished that they were to give the documents whatever weight they believed they deserved.
B. Analysis
Defendant claims numerous errors in admitting exhibits 6, 7 and 8, as discussed, post.
Defendant does not appear to contend that the trial court erroneously took judicial notice of the records under Evidence Code sections 452 and 1530.
1. Admission of exhibits 6, 7, and 8 violated defendant’s rights under the confrontation clause
Appellant first contends that exhibits 6, 7, and 8 were erroneously admitted because they violated his right to confrontation under the federal Constitution, relying upon Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). Initially, defendant waived the error by not objecting on this ground in the lower court and is precluded from raising it for the first time on appeal. Confrontation clause claims can be forfeited by the failure to raise them in the trial court. (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [“‘questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal’”]; People v. Burgener (2003) 29 Cal.4th 833, 869 [confrontation issue forfeited by failure to object in the trial court].)
Anticipating that this court would find waiver, defendant argues that he received ineffective assistance of counsel for his counsel’s failure to object on this ground in the trial court.
“Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, ‘“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” [Citation.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
Because defendant does not show that an objection to this evidence would have been successful on this ground, he fails to show his counsel rendered ineffective assistance by failing to object. (People v. Harpool (1984) 155 Cal.App.3d 877, 886 [“‘[c]ounsel is not required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel’”].)
In Crawford, the United States Supreme Court held that testimonial hearsay evidence is admissible only when the proponent establishes unavailability and a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.) While the court did not define the term “testimonial,” it noted that testimonial evidence at least includes prior testimony made under oath and statements made during a police interrogation. (Ibid.)
As the California Supreme Court has explained, “the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.” (People v. Cage (2007) 40 Cal.4th 965, 984.) Thus, “the statement must have been given and taken primarily for the purpose ascribed to testimony to establish or prove some past fact for possible use in a criminal trial.... [T]he primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.” (Ibid, fn. omitted.)
The court in People v. Taulton (2005) 129 Cal.App.4th 1218 (Taulton) noted that the Supreme Court specifically identified business records as nontestimonial evidence. (Id. at p. 1224, citing Crawford, supra, 541 U.S. at p. 56.) “Such records are prepared for many purposes but not to provide evidence in a potential criminal trial or to determine whether criminal charges should issue. One of the requirements for the admissibility of business records is that ‘[t]he writing was made in the regular course of business....’ (Evid. Code, § 1271, subd. (a).)” (Taulton, at p. 1224.) Because business records are not prepared for the purpose of being used as evidence at trial, they are not testimonial under Crawford. (Taulton, at p. 1224.)
In applying a similar analysis to official records, the court in Taulton explained, “Evidence Code section 1280, subdivision (a) recognizes an exception to the hearsay rule for writings ‘made by and within the scope of duty of a public employee.’ Most such documents are like business records in that they are prepared to provide a chronicle of some act or event relating to the public employee’s duty.” (Taulton, supra, 129 Cal.App.4th at p. 1225.) The court recognized that, unlike business records, some official records may include testimonial evidence, such as records of police interrogations that are produced to be used in a future criminal case. (Ibid.) The court nevertheless concluded, “But to the extent that public records are not prepared for this purpose, they are subject to the same analysis as business records and would not constitute ‘testimonial statements.’ Records referenced in Penal Code section 969b fall into the latter category.” (Ibid.) The Taulton court concluded the official court records included the section 969b packet: “Although they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. Therefore, these records are beyond the scope of Crawford, and the court properly admitted them and considered them for the statutory purposes.” (Taulton, at p. 1225.)
Here, the guilty pleas entered into by defendant were on a standard form and were the official record of the plea agreements. The pleas were entered into clearly for the purpose of receiving a more favorable sentence, not to be used as evidence at trial. Hence, under Taulton, it would appear that the pleas were not testimonial hearsay. Further, the minute orders in exhibit 7 were prepared by the clerk of the court and were the official record of the plea agreement. They were not testimonial.
Other courts have found that a plea allocution is testimonial. In United States v. McClain (2nd Cir. 2004) 377 F.3d 219, a case involving the admission of a codefendant’s plea allocution at a defendant’s trial, was testimonial hearsay “as it is formally given in court, under oath, and in response to questions by the court or the prosecutor.” (Id. at p. 221.) Another case held that a codefendant’s plea or statements violated Crawford because the defendant did not have an opportunity to cross-examine the codefendant. (See United States v. Reifler (2nd Cir. 2006) 446 F.3d 65, 86-87.) These cases did not address the introduction of a defendant’s prior plea in his own trial and as intermediate federal court cases, these case are not binding on this court. (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587-1588.)
Even if we were to reject Taulton and find the plea agreements were testimonial, defendant cannot show that his confrontation rights were violated. The confrontation clause of the Sixth Amendment provides that an accused is entitled to “be confronted with the witnesses against him.” The purpose is to provide a defendant with the opportunity to confront his accusers. (See Crawford, supra, 541 U.S. at pp. 51-52.) Defendant purports he was entitled to confront his attorneys and interpreter essentially to show he understood the terms of his plea agreement. However, these persons were not his accusers, and their statements were not being used against him. The only person who possessed the knowledge of whether he understood the plea agreements was defendant himself. There was no one to confront but himself, and he chose not to testify.
Based on the foregoing, defendant’s counsel cannot be found ineffective for failing to object to this evidence under Crawford.
Even if defendant’s counsel should have objected to the evidence, we find its admission was not prejudicial. In order to prevail on the prejudice prong, “‘prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations.]’” (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
During closing argument the prosecutor pointed out to the jury that the most significant part of the prior DUI paperwork was the warning that driving under the influence of alcohol was extremely dangerous to human life and continuing to do so resulting in someone’s death would be charged as murder. However, as we discussed, ante, the evidence of defendant’s guilt was overwhelming regardless of the admission of these exhibits. As such, defendant cannot show prejudice to support his ineffective assistance of counsel claim.
2. Relevancy of exhibit 7
Defendant also contends that exhibit 7 was irrelevant to show implied malice for second degree murder because he did not complete the required alcohol awareness course so he was unaware of the dangers of driving under the influence.
It is well settled that only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The trial court has broad discretion in admitting evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 717.)
Defendant’s claim was rejected in People v. Johnson (1994) 30 Cal.App.4th 286. In Johnson, the defendant argued that his prior convictions of DUI were not “‘substantially relevant to prove his actual [subjective] knowledge of the great risk to human life from driving under the influence’” if “there was ‘no evidence presentedthat [he] actually attended [a program in which he received detailed information about the special risks to others associated with driving while intoxicated.]’” (Id. at p. 290.)
The Johnson court first reviewed cases where the defendant was charged with second degree murder based on driving under the influence. Those courts routinely and properly admitted evidence of prior driving conduct to show that the defendant knew that drunk driving was dangerous and thus prove implied malice. These cases, however, included a completed drunk driving program. (See, e.g., People v. Brogna (1988) 202 Cal.App.3d 700, 709 [“[o]ne who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others”]; People v. McCarnes (1986) 179 Cal.App.3d 525, 532 [“the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe [citation], is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers”].)
Following McCarnes and Brogna, Johnson thus held “[w]hile a defendant’s conviction for drunk driving, coupled with participation in a drinking driver program, may, arguably, be more probative than a conviction without such participation on the issue of a defendant’s subjective awareness of the risks of drunk driving, a conviction alone is probative on that issue, and, thus, is admissible.” (People v. Johnson, supra, 30 Cal.App.4th at p. 292.)
Based on these cases, defendant’s lack of relevancy argument is without merit. Despite the fact that defendant had not completed the driving course, his prior driving under the influence conviction was probative to show that he was aware of the dangers of driving while intoxicated. This was highly relevant to the determination of whether he had implied malice to support his second degree murder conviction. The trial court did not abuse its broad discretion by admitting this evidence.
Defendant finally contends that exhibits 6, 7, and 8 should have been excluded under Evidence Code section 352 as more prejudicial than probative.
At no time in the lower court did defendant object to the admission of these exhibits as violating Evidence Code section 352. Evidence Code section 352 claims can be forfeited by failing to object. (People v. Benson, supra,52 Cal.3d at p. 786, fn. 7.) As such, he has waived the claim on the instant appeal.
Defendant contends that if his counsel failed to adequately object to the evidence, he received ineffective assistance of counsel. However, since the trial court specifically addressed whether the evidence was more prejudicial than probative, we will review the claim.
Evidence Code section 352 gives the trial court the discretion to exclude evidence that is otherwise admissible if the court determines that the probative value of the evidence 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.” (See People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) “For this purpose, ‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
This evidence was highly relevant to show defendant’s implied malice for second degree murder and that he was driving on a suspended license. Further, the evidence was not overly prejudicial. It did not consume an inordinate amount of time as the documents were admitted with little or no testimony. Further, the evidence did not evoke an emotional bias against defendant as it was not nearly as egregious as his conduct in this case. Finally, based on the other strong evidence of defendant’s guilt, it was not overly prejudicial to defendant to require exclusion.
V
FLIGHT INSTRUCTION
Defendant contends the trial court erroneously instructed the jury with CALCRIM No. 372, the flight instruction, as the evidence did not support the consciousness of guilt inference suggested by the instruction.
A. Additional Factual Background
During discussion of the instructions, the trial court noted, “372, defendant’s flight. In this instance, there was testimony from numerous witnesses that [defendant], upon climbing out of his vehicle, which was on its side, and as the Court understood the testimony, after others had come to the vehicle and were there at the roadway or site of... the traffic collision, that [defendant] stumbled away from... the site of the collision. The Court felt that there was ample testimony to support the giving of this instruction. My understanding was that there was no objection by the defense as well. Is that correct, sir?” Defendant’s counsel responded, “Yes.”
The jury was then instructed, “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
B. Analysis
“In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citations.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
The People contend that defendant waived this issue because he did not object to the instruction. Defendant admits that he did not object to the instruction but argues that he received ineffective assistance of counsel if this court finds the claim waived. Since we conclude the instruction was supported by the evidence and any error was not prejudicial, we will review defendant’s claim.
A witness saw defendant staggering away from the accident site. Officer Calica saw defendant walking away from the accident site when he arrived. Officer Valdez testified that he felt defendant was “measuring [him] up” to see if he could escape and even asked to have his handcuffs removed. The flight instruction was supported by the trial testimony.
We disagree with defendant’s claim that the instruction was erroneous because he was only walking to the tow truck to keep his Explorer from being towed, and he made no attempt to leave the scene because he did not ask for a ride from someone at the scene. This is pure speculation on defendant’s part, and the fact he did not ask for a ride was not determinative as to whether the instruction was appropriately given. The evidence presented was sufficient to warrant the flight instruction.
Further, any error in giving the instruction was harmless because it “did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted.) The flight instruction did not alter the prosecution’s burden; it simply informed the jury that it could use the fact of defendant’s flight, along with all the other evidence, to determine whether he was guilty. (See People v. Mendoza (2000) 24 Cal.4th 130, 180-181.) During closing argument, defendant’s counsel tried to explain defendant’s flight by arguing that defendant had thought one of the vehicles could explode. The jury could give the evidence whatever weight it felt was borne out by the evidence. Finally, there was compelling evidence that defendant committed second degree murder despite the evidence of his flight. We reject defendant’s claim.
VI
GRIFFIN ERROR
Defendant contends that the prosecutor committed Griffin v. California (1965) 380 U.S. 609, 614 [85 S.Ct. 1229, 14 L.Ed.2d 106] error, and for the first time on appeal, Doyle v. Ohio (1976) 426 U.S. 610, 617-618 [96 S.Ct. 2240, 49 L.Ed.2d 91] (Doyle) error, by encouraging the jury to draw adverse inferences from his failure to testify or explain the evidence against him.
A. Additional Factual Background
During closing argument, in response to defendant’s argument that he was not driving the Explorer at the time of the accident, the prosecutor stated, “And furthermore, when he was spoken to by Officer Valdez during his pre-investigative questioning, Officer Valdez told you the defendant admitted to him that he had dr[u]nk six beers between 5:00 and 9:00 p.m. [¶]... [W]e heard no evidence that at that point there was any objection from [defendant]. He proceeded to perform field sobriety tests. He proceeded to provide a breath sample into the PAS device. He proceeded to submit to a blood draw. [¶] If he wasn’t driving and he wasn’t guilty, don’t you think there would be some evidence —.” Defendant objected, and the trial court discussed the matter outside the presence of the jury.
The trial court stated, “I don’t believe what has been said thus far is Griffin error because there are references to a pre-Miranda situation with respect to [defendant],” but cautioned the prosecutor that he was getting close.
Defense counsel objected that the prosecutor had committed Griffin error because the prosecutor argued, “‘If he’s so innocent, why doesn’t he protest,’” and that was essentially violating his right to remain silent. The trial court responded, “I just want to make it clear that what the Court heard was not ‘Why didn’t he protest.’ It was ‘Why didn’t he protest at the time to the officer.’ It was very limited in terms of the specific facts of that moment in time, which is why the Court doesn’t think it’s violative.” There was no further objection by defendant.
B. Analysis
In the lower court, defendant did not object to the prosecutor’s statements based on Doyle error. Rather, he only stated that there was Griffin error. Appellant waived the Doyle issue by failing to object on that ground below. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118; People v. Hughes (2002) 27 Cal.4th 287, 332.) Further, since we find, post, that any comments by the prosecutor were clearly not prejudicial, we need not address the merits of his Doyle claim.
In Doyle, the Supreme Court held that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” (Doyle, supra, 426 U.S. at p. 619, fn. omitted.)
As for defendant’s claim of Griffin error, “[u]nder the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused’s invocation of the constitutional right to silence. Directing a jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider the defendant’s silence as evidence of guilt. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 670.) “A prosecutor may call attention to the defense’s failure to put on exculpatory evidence, but only if those comments are not aimed at the defendant’s failure to testify and are not of such a character that the jury would naturally and necessarily interpret them to be a comment on the failure to testify.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1289.)
Here, as noted by the trial court, the prosecutor’s comments were not in regard to defendant’s failure to testify at trial; rather, they involved his discussions with police prior to trial. We do not believe the jury would have interpreted the comments as directing their attention to defendant’s failure to testify at trial. As such, no Griffin error occurred here.
Further, even if we were to presume error, it was not prejudicial. “[Griffin] error requires reversal unless we can conclude it was harmless beyond a reasonable doubt. [Citations.]... [W]e ask whether, absent the prosecutor’s reference to [the defendant]’s failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? [Citation.]” (People v. Hardy (1992) 2 Cal.4th 86, 154.) “‘“[I]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.”’ [Citations.]” (People v. Boyette (2002) 29 Cal.4th 381, 455-456, fn. omitted.) Doyle error is subject to review under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 386 U.S. 18, 24]. (People v. Quartermain (1997) 16 Cal.4th 600, 621.)
Here, the statement by the prosecutor was brief and immediately cut off by the trial court. Moreover, the statement was not used to infer defendant’s guilt. Rather, it was an attack on the complete lack of evidence that Diaz was driving the Explorer. The jury was still required, if it found that defendant was the driver, that defendant harbored implied malice in order to find him guilty of second degree murder. Additionally, the jury was instructed with CALCRIM No. 355 that “[a] defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” As set forth, ante, there was strong evidence supporting that defendant had implied malice when he struck Arteaga’s vehicle. Any conceivable Doyle or Griffin error was harmless beyond a reasonable doubt.
VII
PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed numerous instances of misconduct during closing argument that require reversal of his conviction for second degree murder.
A. Standard of Review
“When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) A prosecutor’s comments are misconduct under the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales, supra, 25 Cal.4th at p. 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
We will not reverse a criminal conviction for prosecutorial misconduct unless the defendant was prejudiced. (People v. Warren (1988) 45 Cal.3d 471, 480.)
B. Analysis
Defendant contends that three types of prosecutorial misconduct occurred: (1) appeal to the jury’s passion, prejudice, and sympathy; (2) misstating the evidence or referring to matters outside the record; and (3) disparaging defense counsel.
1. Appeal to sympathy, passion, and prejudice of the jury
Defendant claims that on two occasions the prosecutor improperly appealed to the jury’s sympathy for the victim to punish him.
During closing argument, the prosecutor went over the numerous injuries suffered by Arteaga. The prosecutor argued, “You’ll remember that photo that showed horrendous and horrific injuries that she suffered, simply because she happened to be driving on the same stretch of road at the same time as a person who had nearly three times the legal limit of alcohol in his system.” There was no objection by defendant’s counsel.
Later, the prosecutor argued, “Hold him accountable for depriving her of the most basic of all human rights, the right to live. Give her a voice in this courtroom. Give her some justice and make him accept responsibility for continuing to act in a way that he knows is dangerous.”
At no time did defendant object to these comments or ask the trial court to admonish the jury. An admonition to the jury would have cured any error, and failure to request an admonition waives the claim on appeal. (See People v. Morales, supra, 25 Cal.4th at pp. 43-44.) However, defendant argues that he received ineffective assistance of trial counsel due to this failure to object. We will address the merits of defendant’s claim as it relates to his ineffective assistance of counsel claim.
As set forth, ante, in part IV.B.1, to reverse a conviction on an ineffective assistance of counsel claim requires “(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
It is improper for the prosecutor to appeal to the passion and prejudice of the jury in closing argument. (People v. Bradford (1997) 15 Cal.4th 1229, 1379; People v. Mayfield (1997) 14 Cal.4th 668, 803.)
Even if the statements by the prosecutor were improper and defendant’s counsel should have objected, defendant was not prejudiced by the remarks. The jurors were shown photographs of Arteaga’s extensive injuries and received evidence on those injuries. They were already aware of Arteaga’s suffering. Further, the jurors were instructed, “Do not let bias, sympathy, prejudice, or public opinion influence your decision” and that, if the attorneys said anything during trial that conflicted with the court’s instructions, the jurors must follow the instructions (CALCRIM No. 200). We presume they did so, and defendant was not prejudiced by the prosecutor’s comment. (People v. Cain (1995) 10 Cal.4th 1, 52.) Accordingly, defendant cannot show he received ineffective assistance of counsel based on counsel’s failure to object to the prosecutor’s argument.
2. Misstating the record or introducing matters outside the record
Defendant raises five claims of prosecutorial misconduct under this heading.
In arguing the evidence of implied malice, the prosecutor stated, “... Did the defendant know that driving under the influence of alcohol was dangerous? We kind of just covered this first prong. It’s common sense. Everybody knows that.” There was no objection by defense counsel.
While referring to the previous DUI suffered by defendant, the prosecutor stated, “And you will see in that minute order that we talked about, which kind of explains what was going on at each proceeding related to this case, that the defendant was placed on probation, that he was ordered to enroll in an alcohol class, and that he was again ordered by another judge not to drive without a license.” There was no objection by defendant’s counsel.
Further, the prosecutor recounted that a case of beer was found in the Explorer. The prosecutor stated, “And in fact, every one of these beer bottles says, ‘Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery,’ further evidence that he knew what he was doing was dangerous, but was too selfish to stop.”
During a break in argument, the trial court noted that there were 12 bottles of Corona beer on the counsel table during the closing argument. There was no objection by counsel.
During a later discussion, the trial court noted that the prosecutor properly could place the bottles of beer on counsel table but criticized the prosecutor for referring to the warning label on the beer bottles and not stating if the warning was in English or Spanish. The trial court believed this was not part of the evidence in the case.
The trial court also stated, as to the beer bottles, “Now, there have been no objections that were made to the People’s... argument. There were no objections made in the closing argument of the defense. I took that as a tactical decision on both counsel’s part, based upon that waiver of any cause with respect to past items that the Court has referenced.” There were no comments by defense counsel.
At another time in argument, in referring to the plea agreement in exhibit 6, the prosecutor argued, “We know that defendant did an act. We know that the defendant knew that act was dangerous, and we know that he did it anyway. He was driving under the influence. He had a prior arrest for driving under the influence, a prior conviction for driving under the influence. He had signed and initialed a specific admonishment, warning him that if he did it again and someone died, he would be charged with murder.” Again, there was no objection by counsel.
Any claim of prosecutorial misconduct based on the foregoing instances was waived by defendant’s counsel. Counsel never objected or requested an admonition. The trial court itself recognized the waiver. The instant claims have not been preserved for appeal. (People v. Morales, supra, 25 Cal.4th at pp. 43-44.) Anticipating that this court would find waiver, defendant has argued he received ineffective assistance of counsel due to his counsel’s failure to object. We review defendant’s claims for ineffective assistance of counsel.
Except for the reference to the warning on the Corona beer bottles, we do not believe that any of the statements made by the prosecutor amounted to misconduct or misstated the evidence. The prosecutor did not imply, as argued by defendant, that defendant had completed an alcohol course. Nor do we believe the jury would have inferred anything from the prosecutor’s reference to the plea agreement that he “would” be charged with murder. Additionally, the prosecutor’s statement that it was common sense that driving while intoxicated was dangerous was proper argument.
Here, the trial court acknowledged that the warning label on the beer bottles was not part of the evidence. This clearly was a reference to evidence outside the record. However, we find that this reference, if we were to presume the aforementioned comments were misconduct, was not prejudicial.
Again, the jury was instructed that argument by counsel was not evidence and to rely upon their own recollection of the evidence. Further, each of the comments were brief and did not so infect “the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales, supra, 25 Cal.4th at p. 44.)
Defendant did object to the fifth incident of prosecutorial misconduct. During rebuttal argument, in response to counsel’s argument that Diaz was the driver, the prosecutor stated, “Now I ask you this, if he were really driving, if Mr. Diaz were the real driver here, and not this defendant, how did he manage to get his legs stuck and pinned on the passenger side of the car if he was nowhere near that area of the car? [¶] If he was the driver, how did his legs get pinned in there so tightly that it took two grown men, Mr. Pattarozzi and Mr. Guzman, to break Mr. Diaz out of that car from the passenger side and free his legs from that dashboard on the passenger side of the car?” Defendant objected that it misstated the evidence. The trial court admonished the jurors, “Again, ladies and gentlemen, as I’ve told you, the statements by both counsel in their arguments are just that. It’s their interpretation of what they recollect the facts to be. [¶] Ultimately, you are the judges of the facts in this case, and if you have any disagreement in terms of your notes or recollection, it is the record that prevails.” We believe that the admonition cured any potential error and do not find misconduct on this ground.
3. Disparaging defense counsel
Defendant provides two instances which he claims was prosecutorial misconduct by disparaging defense counsel.
During his closing argument, defendant’s counsel stated that the real argument in the case was who was driving the Explorer at the time of the accident and accused the People of not addressing the issue. In response to defendant’s argument that he was not driving the vehicle, the prosecutor stated, “For him to come here today, after a week of testimony, after a week of hearing from civilian witnesses, law enforcement, and expert witnesses, and to now say Aliber Diaz is responsible for killing Maria is nothing short of absolutely disgusting.” Defendant objected. The trial court immediately admonished the jurors, “Ladies and gentlemen, I’m just going to remind you that counsel’s argument is based upon their interpretation of the evidence that has been presented. [¶] You are to base your decision on the evidence that had been presented in this case and your interpretation. You are to judge what the facts are and to determine what the facts are after evaluation of all of the evidence. [¶] And ultimately, if anything is stated with respect to facts that you don’t think were shown by the evidence, if you want to check the record, it’s the Court’s record that will prevail with respect to what has and has not been entered into the record and has been entered as evidence in this case.”
Later, the prosecutor stated, “There was no evidence suggesting that Aliber Diaz was being untruthful in his testimony. No questions asked by the defense attorney, ‘Isn’t it true that you were really driving?’ Nothing of the sort. And I told you, you know, why he didn’t ask those questions, because they wouldn’t help his client. That’s his job. His job is to get his client off.”
“It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense” or to otherwise denigrate defense counsel. (People v. Bemore (2000) 22 Cal.4th 809, 846.) An improper comment occurs only when there is “‘a personal attack’” on defense counsel. (People v. Taylor (2001) 26 Cal.4th 1155, 1167.)
We believe that the trial court’s admonishment to the jury regarding the first instance cured any potential error. Furthermore, neither of the comments made by the prosecutor amounted to personal attacks on defense counsel. Rather, they were responses to the argument made by defense counsel that defendant was not the driver of the Explorer. Finally, such argument did not so infect the trial as to make his conviction a denial of due process. (People v. Morales, supra, 25 Cal.4th at p. 44.)
None of the comments by the prosecutor so infected the trial to render it unfair, and defendant was not prejudiced.
VIII
CUMULATIVE ERROR
Defendant finally argues that the cumulative impact of the instructional errors, prosecutorial misconduct, and erroneous admission of evidence deprived him of a fair trial. We have either rejected defendant’s claims of error or found them not prejudicial on an individual basis. Assuming error, and viewing the errors as a whole, we conclude that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
Defendant appears to raise a new issue in his reply brief that his counsel rendered ineffective assistance of counsel by arguing the theory that defendant was not the driver of the Explorer. We do not address defendant’s claim raised for the first time in the reply brief, as he provides no good cause for failing to raise it in the opening brief. (People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.)
IX
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., MILLER J.