Filed 7/7/16 P. v. Vazquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069915
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F11906122)
                   v.

PERLA IBETH VAZQUEZ,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
         Eric Weaver, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A.
Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Appellant/defendant Perla Ibeth Vazquez was 25 years old and already had two
prior convictions for driving under the influence of alcohol (DUI). Her license had been
suspended, and she had been advised that she could be charged with murder if someone
was killed as a result of her driving under the influence. Despite these warnings,
defendant continued to drive while intoxicated and was repeatedly stopped for erratic
driving.
       On October 21, 2011, defendant was again driving without a license while
intoxicated. She was traveling at a high rate of speed and crashed into the back of Frank
Winslow’s Jeep on the highway, which caused his vehicle to spin, flip over multiple
times, and crash down an embankment. Winslow died at the scene from massive internal
injuries. Defendant continued driving after the collision, even though her air bag had
opened and her car was damaged. She was stopped a short distance away and her car was
trailing debris. Her blood-alcohol content was 0.13 percent.
       Defendant was charged and convicted of count I, second degree murder of
Winslow (Pen. Code, § 187, subd. (a));1 count II, leaving the scene of an accident which
caused death (Veh. Code, § 20001, subds. (a), (b)(2)); and count III, misdemeanor
driving with a license suspended for a DUI conviction (Veh. Code, § 14601.2, subd. (a)).
She was sentenced to 15 years to life.
       On appeal, defendant complains that even though the prosecutor originally
charged her with both second degree murder and gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)), he moved to dismiss the manslaughter charge on the first
day of trial. Defendant asserts the court abused its discretion when it granted the motion
and allowed the prosecutor to only go forward with the second degree murder charge.
Defendant also contends the abstract of judgment must be amended.
       We order amendment of the abstract of judgment and otherwise affirm.




       1   All further statutory citations are to the Penal Code unless otherwise indicated.

                                               2.
                                           FACTS
Counts I through III
       Around 3:00 a.m. on October 21, 2011, Frank Winslow (Winslow) was driving his
white Jeep Wrangler on Highway 168 in Fresno. Winslow worked for Foster Farms as a
truck driver. He had just finished his daily round trip between Fresno and Los Angeles
and was driving home in his personal vehicle. Winslow and his wife had been married
for 27 years, and they had two children.
       Jean Souvanny (Souvanny) and her husband, Sim Sor (Sor), were driving behind
Winslow’s Jeep in the slow (number 3) lane. They did not know him. Souvanny
believed both their cars were traveling at 65 miles per hour. The weather was cool and
dry; visibility was good; there was no fog or rain; and the road was not slippery.
       Souvanny testified she noticed headlights in her rear view mirror, which were
from a car traveling at a faster rate of speed. The car was coming up behind her very fast.
Souvanney told Sor that “all of a sudden” headlights were coming “from behind pretty
quick.” Sor turned around and saw two headlights from one car. Sor thought the car was
going about 80 miles per hour, and it was catching up with them.
       Souvanny was going to turn on the Shaw Avenue off-ramp. The Jeep remained in
front of her in the slow lane. As Souvanny turned on the off-ramp, Souvanny and Sor
suddenly heard a very loud crash from the left side of their car. Souvanny looked to her
left and saw a black car pushing the Jeep. Sor also saw the black car. The Jeep flipped
over and went down the embankment. Souvanny testified the black car stopped on the
highway for a very short time, then continued on the freeway at a slow rate, toward the
Bullard off-ramp.
       Souvanny immediately pulled over and her husband called 911. Sor ran down the
embankment to check on the Jeep’s occupant. Sor testified the driver was still in his seat.
He was leaning toward the passenger side, and his face was down. He was still



                                             3.
breathing. Sor tried to talk to him, and said, “ ‘Hey, you okay,’ ” and “ ‘Hey, stay with
me.’ ” After about 30 seconds, the driver stopped breathing.
       The initial investigation
       At 3:25 a.m., law enforcement and emergency personnel responded to the scene.
The officers found Winslow’s Jeep in the culvert adjacent to the off-ramp. Sor was still
standing next to it. Winslow was slumped over in the driver’s seat, leaning toward the
passenger side, and still wearing his seat belt. He had suffered massive head injuries and
was pronounced dead at the scene.
       The pathologist testified Winslow suffered extensive injuries and internal bleeding
in his head, brain, and entire body. The cause of death was head, neck, and chest injuries
as a result of very significant force from a motor vehicle collision. The head and neck
injuries would have been fatal in a matter of seconds or minutes.
       The damage to the Jeep was consistent with a total rollover. The tires were
deflated, the doors and fenders were extensively damaged, and there was additional
damage to the rear of the vehicle. There was a large debris field of glass, plastic, and
fluids from the Jeep in the slow lane and the shoulder. There were tire abrasions, skid
marks, and gouges in the roadway, which were also from the Jeep. The officers believed
the Jeep overturned, skidded across the roadway, and rolled down the culvert.
       Arrest of defendant
       Shortly after the fatal collision, Madera Police Officer Jason Green was riding his
patrol motorcycle on Highway 168. He was off duty and heading home, and unaware of
the fatal collision. He was near the Bullard off-ramp, just north of the collision scene,
when he saw a black car traveling slowly on the shoulder. The black car was straddling
the fog line and the hazard lights were on. There was a trail of vehicle debris and fluid
behind the car, the front end was damaged, and smoke was coming from the engine.
       Officer Green activated his siren and signal lights to conduct a traffic stop. The
black car stopped about halfway down the Bullard off-ramp.

                                             4.
       Officer Green approached the driver’s side window. Defendant was sitting in the
driver’s seat of her black 2004 Infiniti G35. The driver’s side air bag was inflated, and
she was trying to flatten it down. There was significant damage to the car. Green
smelled an odor of an alcoholic beverage. Defendant’s speech was slow, thick, and
slurred, and he believed she had been drinking.
       At 3:21 a.m., Officer Green contacted the California Highway Patrol (CHP) to
report a possible DUI collision involving the black Infiniti. The dispatcher advised him
to detain defendant because she was likely involved in the fatal collision.
       Officer Green asked defendant to get out of her car and advised her that she was
being detained. Defendant got out and had to hold onto her car to maintain her balance.
Green placed her in handcuffs and they waited at the back of her car. Defendant asked
Green “how long I thought this was gonna take,” because she had to work the next day.
       CHP Officer Fief arrived at Officer Green’s location and took custody of
defendant. Fief testified defendant’s eyes were red and watery, and her speech was
slurred, slow, and deliberate. Fief smelled the “strong and distinct odor of alcohol
emitting from her breath and her person.”
       Officer Fief administered field sobriety tests (FSTs) to defendant. Defendant
could not follow instructions and she lost her balance. Defendant swayed and stumbled,
and Fief put out his arms to catch her. Fief testified her performance was consistent with
someone who was impaired due to alcohol consumption.
       Officer Fief advised defendant that someone had died as a result of the collision.
Fief testified defendant did not cry, fall down, or show any remorse. Instead, defendant
asked Fief “when she could go home because she was tired and she wanted to go to sleep
before going to work.”
       Officer Fief concluded defendant had been driving under the influence and
arrested her. He placed her in the back seat of his patrol car. Within a few moments,
defendant passed out.

                                             5.
       Defendant was 25 years old and driving on a suspended license because of prior
DUI convictions. Defendant submitted to a blood test at 5:59 a.m., about two hours after
the fatal collision. Her blood-alcohol level was 0.13 percent. An expert testified that a
person of similar build to defendant would have required four 12-ounce alcoholic drinks
to reach that concentration rate. The expert believed that based on calculations from
absorption rates, her blood-alcohol level would have been between 0.17 and 0.18 percent
at the time of the accident, the equivalent of four to five drinks.
       Accident reconstruction
       A forensic examination of defendant’s car revealed the brakes worked, and there
were no preexisting mechanical problems that would have contributed to the collision.
The engine of defendant’s car was not damaged from the impact. As a result of the
collision, the air bag had deployed, and the power steering and radiator fluid containers
were shattered and leaking, consistent with the debris which Officer Green saw on the
highway.
       Defendant’s car had significant damage to the front end, passenger side, and
gasoline tank. There were white paint transfers embedded in the damaged portions of the
black car.
       When the officers inspected the scene of the collision, they found a hood emblem,
a bumper, and plastic grill piece from an Infiniti vehicle. These pieces were later
matched to damaged sections of defendant’s car.
       The victim’s Jeep was extensively damaged, consistent with rolling over several
times. There was evidence the headlamps and rear lights were operable and had been
activated at the time of the collision.
       The officers determined defendant’s car Infiniti rear ended the victim’s Jeep at a
high rate of speed. Defendant’s car actually went under the Jeep’s rear bumper, and
displaced and broke the Jeep’s suspension, based on evidence of severe displacement of
the suspension and axle. As a result, the Jeep went into a quarter spin, based on abrasion

                                              6.
marks on the road. The momentum from the spin caused the Jeep to roll over on the
driver’s side and top. The Jeep continued to roll over multiple times as it fell 35 feet
down the steep culvert. The officers believed the driver of the Infiniti lost control after it
hit the Jeep. The Infiniti skidded out of control, the passenger side swiped a guardrail,
and then it drove away.
Counts IV through VIII
       In addition to counts I through III based on the fatal collision, defendant was also
tried in the same proceeding with several offenses arising from another DUI accident
which had occurred a few months earlier.
       Just after midnight on July 9, 2011, Leah Gilbert was driving on Herndon near
Cedar when a black car “came rushing upon us” from behind. Gilbert testified the black
car ran two red lights, and she thought it was going more than 90 miles per hour. Gilbert
prepared for impact, but the black car swerved and missed her. The black car continued
speeding down Herndon, and weaved in and out of traffic. Gilbert immediately called
911 and reported the incident. Gilbert only saw one person in the car, and told the 911
operator the driver was a male.
       Also after midnight, Lila Jones and Norris Yancy were leaving an apartment
complex near Maple and Herndon. They were walking back to their parked car on
Maple, and heard noise from an accelerating car. They saw a small dark or black vehicle
hit one parked car on Maple. It bounced off that car, and then hit another parked car
which was directly behind Jones’s car. The dark vehicle narrowly missed Jones, Yancy,
and their car.
       Jones testified the dark car’s front end was damaged, but it accelerated and
continued to the end of the street, and then stopped. Several neighbors emerged from the
apartment complex because of the noise from the collision. The dark car remained on the
street until the police arrived.



                                              7.
       Sarah Hutchinson had parked her grey Toyota on Maple. Shortly after midnight,
she walked back to her car and saw several people gathered around it. They were also
looking at a black car parked further down Maple. Hutchinson testified there was
extensive damage to her parked car. The driver’s side back tire was “demolished” and
totally flat. It appeared the passenger side of her car had been pressed against the curb,
and the hubcap on the passenger side was off. The back left corner of her car was “just
messed up.” Hutchinson testified a red car which was parked on the street was also
damaged.
       Hutchinson spoke to the people on the street, who claimed to have seen the
incident. She called 911. As she waited for the police, Hutchinson kept watching a black
car, which had stopped further down the street. She did not see anyone get in or out of it.
       At 12:53 a.m., Officers Sanders and Jacobson responded to the corner of Maple
and Herndon, and found a blue car and a red car parked on the side of Maple. Both cars
were damaged on the left rear side, consistent with being hit by a vehicle traveling on
Maple. A black Infiniti parked one block away. The black car had significant damage on
the right front fender, right front wheel, and the wheel well.
       When the officers approached the black car, defendant was sitting in the driver’s
seat and a man was in the passenger seat. Defendant was the registered owner. Officer
Jacobson spoke to defendant, and testified she had red, watery eyes, slurred speech, and
appeared to be under the influence of alcohol. Defendant got out of the car and there was
alcohol on her breath. Officer Jacobson showed defendant the damage to her vehicle.
Defendant’s responses were slow and delayed, and she gave conflicting replies. She
initially said she did not see any damage; then she said there was some damage; and then
she again said there was nothing wrong. Jacobson asked defendant if she felt the effects
of alcohol. Defendant said, “ ‘I didn’t have no alcohol.’ ” She failed several field
sobriety tests.



                                             8.
         The male passenger had a strong odor of alcohol, his speech was slurred, his eyes
were bloodshot, and he staggered when he got out of the car. The black car was towed
and impounded.
         Officer Jacobson concluded defendant was driving while intoxicated and arrested
her. He advised defendant of the state’s implied consent law, and asked whether she
would submit a blood or breath sample. Defendant replied that she did not need to give a
chemical test. Jacobson again explained the implied consent law, and defendant did not
respond. Jacobson advised defendant that a blood sample would be taken. He placed
defendant in his patrol car and drove her to the location where a DUI checkpoint was
being held that night. Within five minutes, defendant fell asleep in the patrol car and
urinated on herself.
         Defendant’s blood-alcohol level was 0.21 percent. Such a percentage would have
resulted from a person quickly consuming the equivalent of nine to 10 ounces of 0.86
proof whiskey, or four to five beers, “at one go on an empty stomach.” Defendant was
driving on a suspended license.
         Later that morning, around 3:00 a.m., after the police and witnesses were gone,
Luis Zavala returned to his red Ford Focus, which had been parked on Maple. He
discovered it had been damaged: the doors were bent out of shape, the back axle and
body were damaged, and the driver’s side tire was flat.
                          DEFENDANT’S PRIOR DUI CASES
         The prosecution also introduced the following evidence of defendant’s prior DUI
cases.
2006 prior conviction
         Around 9:00 a.m. on January 28, 2006, Officer McAlister responded to a dispatch
on Road 88, a rural area just outside Dinuba. He saw a red Toyota going three to five
miles per hour on the unpaved right shoulder. The car’s hazard lights were on, and the



                                              9.
right tires were in the dirt. He pulled behind the Toyota but it continued at the slow rate
of speed. McAlister activated his signal lights and the Toyota finally stopped.
       Officer McAlister testified defendant was the driver and sole passenger. Her
driver’s seat was reclined back, and she appeared disheveled and unkempt. McAlister
smelled the strong odor of an alcoholic beverage from her. He asked her to get out of the
car and she complied. She was unsteady, wobbly, staggering, and noticeably swaying.
Defendant told McAlister that she was lost, and she could not find her way home. As
they talked, McAlister continued to smell alcohol from her breath, and her speech was
slurred. She failed the field sobriety tests.
       Officer McAlister believed she was intoxicated and arrested her for driving while
impaired.
       As a result of this incident, defendant was charged in the Superior Court of Tulare
County with violations of Vehicle Code section 23152, subdivisions (a) and (b). On
February 15, 2006, defendant pleaded no contest to a violation of section 23152,
subdivision (b). She was ordered not to drive with any measurable amount of alcohol in
her blood and referred to a driving under the influence school.
       The plea contained the following “murder advisement.”

       “I understand that being under the influence of alcohol or drugs or both
       impairs my ability to safely operate a motor vehicle and 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.”
       Defendant initialed the box next to this paragraph.
2010 prior conviction
       Around midnight on May 8, 2010, Officer Griffith was on patrol on Shaw Avenue
in Clovis and determined a car was blocking other vehicles from crossing through an
intersection. Griffith pulled next to the vehicle. Defendant was the driver and sole



                                                10.
occupant. Her head was down. Griffith positioned his patrol car behind the vehicle to
block other traffic from hitting it, and activated his signal lights.
       Officer Griffith briefly activated his siren to get the driver’s attention, but there
was no response. He aimed his flashlight inside the car and knocked on the driver’s side
window. Defendant still did not respond.
       A small dog was in the car and started to bark. Defendant finally reacted. Officer
Griffith asked her to roll down the window. He reached in and turned off the car’s
ignition. Defendant smelled moderately of alcohol, her eyes were red and watery, and
her responses were slow. Griffith asked defendant whether she had been drinking.
Defendant said she had stopped drinking between 2:00 p.m. and 2:30 p.m. the previous
afternoon. Defendant’s performance of the field sobriety tests was poor and consistent
with someone who was impaired because of alcohol consumption.
       Officer Griffith believed defendant was under the influence of alcohol and arrested
her. Defendant elected to have a breath test.
       As a result of this incident, defendant was charged with driving with a blood-
alcohol level of 0.08 or higher (Veh. Code, § 23152, subd. (b)) and driving under the
influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)), with a prior conviction
from the 2006 offense. On August 9, 2010, defendant pleaded no contest to a violation of
Vehicle Code section 23152, subdivision (b), and admitted the prior conviction.
Defendant was ordered to pay various fines and fees, attend a driving under the influence
school, ordered not to possess any alcohol, and ordered not to be present in
establishments where alcohol was the primary item for sale.
       As part of the plea, defendant received another “murder advisement.”

       “You are hereby advised that being under the influence of alcohol or drugs
       or both impairs your 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 you continue to drive while under the



                                              11.
       influence of alcohol or drugs or both and as a result of that driving
       someone is killed, you can be charged with murder.

       “I understand the Court’s warning that I can be charged with murder if I kill
       someone while driving under the influence of alcohol or drugs.” (Bold in
       original.)
       Defendant initialed the box next to the advisement.
Other prior DUI
       On August 20, 2010, Officers Santos and Branston were on patrol on the freeway
and saw a dark colored vehicle tailgating another car. The dark colored car moved into
another lane, accelerated to 80 to 120 miles per hour, and quickly changed lanes. The
officers had a difficult time keeping up with the speeding car. The car pulled off the
freeway, and the officers were finally able to catch up with it and perform a traffic stop.
       Defendant was the driver and sole occupant. When defendant got out of the car,
she was off balance, smelled of alcohol, and her eyes were red and watery. Her
performance of the field sobriety tests was poor. Officer Santos concluded she was under
the influence of alcohol and arrested her.
                                 DEFENSE EVIDENCE
       Defendant worked in data entry for Lotus Fresno Corporation, which owned radio
stations. She introduced evidence from coworkers that she was a hard worker, and she
never displayed any evidence of alcoholism at work. They did not know she had a
drinking issue or prior DUI arrests.
       Emilio Herrera testified that on the night of the fatal collision, defendant attended
a concert at Rainbow Ballroom in Fresno with Herrera and several friends. She drank a
couple of draft beers, but Herrera did not see her fall down. Defendant and her friends
left the concert and went to a restaurant. Herrera drove defendant’s car to the restaurant.
She ate a little food from Herrera’s plate, and drank water and coffee. They later returned
to the ballroom. Herrera testified defendant talked normally and did not have any
problems walking. At the end of the evening, defendant drove away in her own car.


                                             12.
Herrera followed her for several miles because they were going to the same highway.
Herrera testified she was driving 35 to 40 miles per hour. She did not swerve, run red
lights, or drive erratically. Defendant entered the freeway, and Herrera went in the other
direction.
       Dr. Avak Howsepian, a staff psychiatrist at the Veteran’s Hospital and assistant
professor of psychiatry at UCSF Fresno, testified for the defense. Based on a
hypothetical situation similar to defendant’s circumstances and the fatal collision, Dr.
Howsepian believed her conduct was consistent with “alcohol intoxication delirum.”
       The defense also called two experts who testified that when defendant hit the rear
of Winslow’s Jeep, the impact would not have caused Winslow’s fatal injuries based on
the premise that there was a very small differential in speed between the two vehicles.
An expert testified Winslow suffered the fatal injuries from the rollover portion of the
accident.2
Defendant’s trial testimony
       At trial, defendant testified she “now” realized she was an alcoholic. She started
drinking when she was 15 years old to escape her problems. She never drank at work.
She never sought help because she did not think she had a problem.
       Defendant admitted she was arrested for driving under the influence in 2006, when
she was 19 years old. She had been drinking at a concert and got lost when she was
driving home. She entered a plea without an attorney. She remembered signing the plea
form and knew that the judge warned her that “if I’m caught again … and I cause a death
that I could be charged with murder.” She attended a DUI school as part of the plea.




       2  The defense moved to introduce evidence that the impact from defendant’s car
could not have caused the Jeep to flip and rollover, which resulted in Winslow’s fatal
injuries, and that the Jeep had a design defect. The court excluded the evidence.

                                            13.
       Defendant also admitted she was arrested in May 2010 for another DUI offense,
when her car blocked the intersection. She hired an attorney to represent her. She
entered a plea and knew there was another “murder” admonition on the plea form.
       Defendant testified about the August 2010 incident, when she was stopped for
tailgating a car on the highway. She had two beers and drove very fast to meet her
boyfriend. She was stopped by the police and admitted she did not have a license.
Defendant said she was “stupid” for doing so after her prior DUIs. She received a ticket,
but she was not charged in that case.
       Defendant also testified about the July 2011 incident involving the parked cars on
Maple. She met a male friend at a bar and drank beer. They were both drunk and
decided to head to a friend’s house so they could sleep it off. Defendant testified she let
her male companion drive because she thought he was in better shape. She fell asleep in
the passenger seat. Her friend woke her up and said he had wrecked her car. Defendant
got out of the car, but she was so drunk that she did not notice any damage. Defendant
was upset and they switched seats, and she got into the driver’s seat since it was her car.
They talked about what to do, and then the police arrived. Defendant admitted that when
the officer talked to her, she lied and said she had not been drinking. Defendant insisted
her male companion was driving when her car crashed into the parked cars.
       Defendant admitted that after the July 2011 incident on Maple, she called the
insurance company and pretended to be her mother. Defendant lied about what happened
because she wanted to get her black Infiniti fixed, and “I wasn’t on the insurance.” As a
result, her car was repaired and she kept driving.
       As for the fatal crash, defendant testified she went to the concert at the Rainbow
Ballroom that night around 9:00 p.m. She was not planning to drink, but a friend offered
her beer and “I didn’t know how to say no.” Other friends offered her more drinks, and
“I don’t know how to say no. Once I start, I can’t seem to stop, I guess.” Defendant
joined her friends at the restaurant. She felt dizzy and buzzed from the alcohol. She ate

                                            14.
some food and drank coffee at the restaurant to “sober up,” and then they returned to the
ballroom.
       Defendant testified she felt “sober enough and okay to drive” home from the
ballroom. Defendant admitted she did not think about her prior DUI arrests or collisions
when she started to drive home, or whether she might hurt someone.
       Defendant testified she remembered leaving the ballroom’s parking lot, and she
was sure that she stopped at traffic lights and drove the speed limit. She knew that she
turned on Highway 41, took the ramp to Highway 180, and then turned onto Highway
168. However, defendant did not recall driving on either Highway 180 or Highway 168
because her memory was “blurred.” “The only thing I remember is basically seeing a lot
of flashes, and just I remember kind of – basically the only thing I do remember was
seeing a Jeep in front of me and that I was almost gonna hit it.”
       Defendant remembered that she was in the slow lane, and she tried “to swerve to
the side so I wouldn’t hit him and I ended up in the middle lane.” She remembered the
“impact” and “kind of coming to again, that’s my next memory, seeing an air bag
deployed, seeing how my car was. So I realized that … something happened. I looked
around to see if I hit anybody or anything. I didn’t see no cars. And then I guess I just –
I was scared…. So I just kept driving.” Defendant testified she looked around and
realized her car was damaged, and the air bag was opened, but she did not see any cars
and just kept driving slowly and tried to remember what she hit.
       Defendant testified that she was standing on the road with Officer Fief when he
told her that Winslow had died in the crash. Defendant disputed Fief’s testimony about
her reaction to this news. Defendant testified she went into shock, started crying
hysterically, and knelt down in a fetal position. Defendant testified she knew she had
been drinking that night, and she knew she was driving. Fief put her in the back of the
patrol car, and she fell asleep because she was emotionally drained.



                                            15.
       Defendant admitted she attended DUI classes after her two prior DUI convictions,
but she continued to drink and drive, and her license was still suspended. She did not
realize it was dangerous to drink and drive.

       “Q. You’re telling us after going to court and signing a chance of plea
       form that says drinking and driving is dangerous and if you continue to do
       so and kill somebody you can be charged with murder, even after that you
       didn’t know that it was dangerous?

       “A.    I never thought that that could ever happen to me.”
       On cross-examination, defendant admitted she was also cited in 2008 for driving
without a license, and she drove even though she knew her license was suspended.
Charges and convictions
       Defendant was charged with the following offenses from the fatal collision: count
I, second degree murder of Winslow (§ 187, subd. (a));3 count II, leaving the scene of an
accident which caused death (Veh. Code, § 20001, subds. (a), (b)(2)); and count III,
misdemeanor driving with a license suspended for a DUI conviction (Veh. Code,
§ 14601.2, subd. (a)).
       In addition, defendant was also charged with committing the following offenses on
July 9, 2011, involving the collision into the parked cars on Maple: count IV,
misdemeanor driving with a blood-alcohol level of 0.08 percent or higher (Veh. Code,
§ 23152, subd. (b), § 23578); count V, misdemeanor driving under the influence of
alcohol, with two prior convictions (Veh. Code, § 23152, subd.(a)); counts VI and VII,
misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a)); and count VIII, driving
while her license was suspended for a prior DUI conviction.



       3 As we will discuss in issue I, post, the information originally charged defendant
with second degree murder and gross vehicular manslaughter. On the first day of trial,
the court granted the prosecution’s motion to amend the information, which dismissed the
manslaughter charge. Defendant contends the court abused its discretion when it
permitted the prosecution to dismiss the lesser offense.

                                               16.
       After a jury trial, defendant was convicted of counts I through III, involving the
fatal collision. The jury was unable to reach verdicts on counts IV through VIII,
involving the parked cars; the court declared a mistrial and dismissed those counts.4
Defendant admitted the allegation in count III that she had a prior suspension of her
license.
       On August 12, 2014, defendant was sentenced to 15 years to life for count I, with
a concurrent term of three years for count II, and time served for count III.
                                      DISCUSSION
I.     Amendment of Information
       As noted above, defendant was initially charged with count I, second degree
murder of Winslow, and the alternative count II, gross vehicular manslaughter of
Winslow while intoxicated. On the first day of trial, the court granted the prosecution’s
motion to dismiss count II and proceed only on the murder charge. On appeal, defendant
contends the court abused its discretion when it allowed the prosecution to dismiss the
manslaughter charge at that late date, which presented the jury with an all-or-nothing
decision on second degree murder, and prevented the jury from considering the lesser
manslaughter offense.
       We begin with the charging history of this case.
       A. The Initial Charges
       On October 24, 2011, the felony complaint was filed which charged defendant
with multiple felonies, including count I, murder of Winslow; and count II, gross
vehicular manslaughter of Winslow while intoxicated. A first amended complaint was
later filed which again alleged counts I and II, plus additional offenses.




       4The jury’s inability to reach verdicts on the charges from the July 2011 incident
may have been based on defense counsel’s insistence in closing argument that there was a
reasonable doubt whether defendant was driving the car that night.

                                             17.
       On August 15 and 16, 2012, the preliminary hearing was held and defendant was
held to answer on all charges.
       On August 21, 2012, the information was filed which charged defendant with
counts I and II, and other offenses.
       On March 28, 2014, defendant moved to set aside the information, particularly
count I, murder, for insufficient evidence. The prosecution filed opposition and argued
all the charges were supported by the evidence adduced at the preliminary hearing.
       On April 10, 2014, defendant offered to plead guilty to gross vehicular
manslaughter. Defendant refused to plead guilty to second degree murder and intended
to litigate that charge. The prosecutor refused to accept defendant’s plea offer for
manslaughter based on “her history of prior convictions, her history of obviously open
cases, she’s a murderer, it’s my office’s position she is a murderer and she should plead
to a murder charge.”
       On April 11, 2014, the court denied defendant’s motion to set aside the
information.
       B. Motion to Amend Information
       On June 6, 2014, defendant’s trial was set to begin with motions and jury
selection. The prosecutor moved to file a first amended information which deleted count
II, gross vehicular manslaughter while intoxicated. The prosecutor intended to only
proceed on count I, second degree murder of Winslow, along with the other charges.
       Defense counsel objected and argued such an amendment was grossly unfair on
the first day of trial. Defense counsel stated he had been prepared to defend “against
gross vehicular manslaughter charge as well as argument for a lesser included offense,”
and the proposed amendment would change the case to “an all or nothing charge of
murder.” “[E]ver since I’ve had this case … my defense, my arguments have been
geared towards arguing for a lesser included offense, and now by the People dismissing



                                            18.
that charge of gross vehicular manslaughter, Count 2, they’ve in essence basically shut
down my defense that I’ve been preparing for.”
       Defense counsel explained that gross vehicular manslaughter was not a lesser
included offense of second degree murder. Defense counsel conceded the prosecutor had
advised him of this possibility a week earlier, but it was not a certainty.
       The prosecutor replied that his office had charging discretion, and he advised
defense counsel the previous week that he was going to dismiss the gross vehicular
manslaughter charge. The prosecutor noted that aside from any defense strategy for that
charge, defense counsel still had to defend against count I, murder, and the amended
information did not change that since the murder charge was independent of the
manslaughter count.
       C. The Court’s Ruling
       The court granted the prosecutor’s motion to file the amended information.

               “I do think [defendant’s] objection to the filing of the first amended
       information should be overruled. The Court feels that the People
       essentially can elect the charges to proceed forward on, and the prejudice is
       essentially if, for example, they had added some other charge or something
       that significantly altered the maximum exposure in a way that worked to
       the prejudice of the defendant, but the dropping of a count, I think, is within
       the discretion of the People, so the Court is going to overrule that
       objection.”
       D. The Instructional Conferences
       During the initial instructional phase, the court asked the parties about any lesser
included or lesser related instructions. Defense counsel intended to ask for gross
vehicular manslaughter as a lesser related instruction to second degree murder. The court
replied that the prosecutor had to agree to a lesser related instruction. The prosecutor
confirmed the court’s belief that the primary charge was second degree murder “or
nothing.”




                                             19.
       When the parties again addressed the instructions, defense counsel requested an
instruction on gross vehicular manslaughter as a lesser related offense of murder. He
argued there was sufficient evidence to support the instruction, and the jury should have
more than one option in this case. The prosecutor replied there were no lesser included
offenses in implied malice/second degree murder.
       The court denied defendant’s motion for an instruction on gross vehicular
manslaughter, and stated the prosecutor had the right to charge the case and pursue an
“all or nothing strategy of second degree murder.” The court did not instruct the jury on
any lesser included or lesser related offenses to murder.
       E. Closing Argument
       Prior to closing arguments, defense counsel asked the court if he could tell the jury
that the district attorney had dismissed the gross vehicular manslaughter count. The court
said no, but that counsel could argue that defendant was guilty of negligence and did not
act with malice, or that she acted with “criminal stupidity which does not constitute
second degree murder.” The court further stated:

       “You can say that she was negligent as far as the court’s concerned. I don’t
       think it’s particularly helpful to get into a big discussion of what negligence
       is. I mean, she was – you said she did, I forgot exactly how you phrased it
       in your opening statement, she did something really dumb, but it did not
       amount to implied malice. And so I don’t think you have to concede the
       implied malice. Now let me just say, I don’t think the district attorney’s
       charging decision comes into that. The argument is whatever she’s guilty
       of she’s not guilty of what she’s charged with, and whether the D.A. opted
       to charge her with something or not is not relevant.”
       In his closing argument, defense counsel conceded defendant made bad decisions
but argued she was not a murderer. Counsel argued defendant made an irresponsible and
negligent choice to drive that night, under the honest but mistaken belief that she was
okay, but she did not act with malice.




                                             20.
       F. Analysis
       Defendant asserts the court failed to exercise its “informed discretion” when it
granted the prosecutor’s motion to amend the information, because it “simply concluded”
the People could elect the charges it was going to proceed on. Defendant asserts the
court failed to consider principles of fairness and due process in light of the prosecutor’s
“last minute motion to amend,” which forced the jury with an “all or nothing” choice in
this case.
       The court did not abuse its discretion. The prosecution has broad discretion to
decide which charges to bring against a defendant and the “courts do not generally
supervise these ‘purely prosecutorial function[s].’ [Citations.]” (People v. Ceja (2010)
49 Cal.4th 1, 7; People v. Richardson (2008) 43 Cal.4th 959, 1013.)
       Due process requires that the defendant receive notice of the charges against her
so that she has a reasonable opportunity to prepare and present a defense, and not be
taken by surprise by evidence offered against her at trial. (People v. Seaton (2001) 26
Cal.4th 598, 640; People v. Fernandez (2013) 216 Cal.App.4th 540, 554.) Generally, the
preliminary hearing transcript provides the accused with the nature of the charges against
the defendant, satisfying the due process requirement. (People v. Jones (1990) 51 Cal.3d
294, 317318.)
       A defendant’s due process rights are not prejudiced by amendment of an
information, and the trial court may permit amendment of the accusatory pleading “at any
stage of the proceeding, up to and including the close of trial,” so long as the defendant’s
substantial rights are not prejudiced. (People v. Graff (2009) 170 Cal.App.4th 345, 361.)
An information or indictment, however, “cannot be amended so as to change the offense
charged, nor an information so as to charge an offense not shown by the evidence taken
at the preliminary examination.” (§ 1009; People v. Winters (1990) 221 Cal.App.3d 997,
1003; People v. Fernandez, supra, 216 Cal.App.4th at p. 554.) “ ‘[A]t a minimum, a
defendant must be prepared to defend against all offenses of the kind alleged in the

                                             21.
information as are shown by evidence at the preliminary hearing to have occurred within
the timeframe pleaded in the information.’ [Citations.]” (People v. Jones, supra, 51
Cal.3d at p. 317.)
       The trial court’s exercise of its discretion to grant a motion to amend under section
1009 is broad and will not be disturbed on appeal absent a clear abuse of discretion.
(People v. Jones (1985) 164 Cal.App.3d 1173, 11781179.)
       In this case, the court’s decision to allow the filing of the amended information did
not violate defendant’s due process rights because the amendment dismissed the lesser
charge. The amendment retained the more serious charge of second degree murder,
which defendant had faced from the beginning of this case. Indeed, defendant admitted
that before the fatal collision, she had been advised after her two prior DUI convictions
that she could be charged with murder if someone died as a result of her driving under the
influence. In any event, defendant was arrested on October 21, 2011, shortly after the
fatal collision. The felony complaint was filed on October 24, 2011, and charged
defendant with both second degree murder and gross vehicular manslaughter while
intoxicated. The same two charges were included in the first amended complaint.
Defendant was held to answer to these charges after the preliminary hearing on August
16, 2012. On August 21, 2012, the information was filed which again charged defendant
with second degree murder and gross vehicular manslaughter while intoxicated, along
with other offenses.
       More importantly, the amendment did not add a more serious offense or implicate
a more serious sentence. Defendant and her attorney were not taken by surprise that she
would still be charged with second degree murder, and presumably her attorney was
prepared to defend against murder, in addition to the other offenses in the original
information.
       Nevertheless, defendant contends the amendment violated her due process rights
because the People “do not have a right to insist on a conviction that is harsher than the

                                            22.
evidence warrants.” Defendant asserts that in obtaining the dismissal of the manslaughter
charge, the prosecutor “accomplished what objecting to a lesser included instruction
would not have accomplished. The trial court would have been required to overrule an
objection to a lesser included instruction. Here, however, the court permitted the
prosecutor to accomplish the same thing by ceding its discretion to the prosecutor to
charge whatever he wanted to.”
       Defendant’s arguments are based on a flawed premise that confuses the different
due process considerations between lesser included and lesser related offenses. A trial
court has a duty to instruct on the general principles of law closely and openly connected
with the facts before the court, and which are necessary for the jury’s understanding of
the case. (People v. Breverman (1998) 19 Cal.4th 142, 154155.) An accusatory
pleading gives notice to the defendant that the prosecution intends to prove all the
elements of any lesser necessarily included offense of the charged offense and that the
defendant must be prepared to defend against such offenses. (People v. Birks (1998) 19
Cal.4th 108, 118.) Accordingly, due process requires a trial court to instruct the jury on
lesser necessarily included offenses when there is a question whether all elements of the
charged offense are present, provided there is substantial evidence justifying conviction
of a lesser included offense. (People v. Gray (2005) 37 Cal.4th 168, 219; People v.
Moore (2011) 51 Cal.4th 386, 408409.)
       In contrast, “a trial court has no sua sponte duty to instruct on lesser related
offenses. [Citations.]” (People v. Lam (2010) 184 Cal.App.4th 580, 583.) A lesser
related offense is one “closely related to that charged and [for which] the evidence
provides a basis for finding the defendant guilty of [while finding him] innocent of the
charged offense.” (People v. Toro (1989) 47 Cal.3d 966, 974, disapproved on another
ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
       A defendant does not have “a unilateral entitlement to instructions on lesser
offenses which are not necessarily included in the charge.” (People v. Birks, supra, 19

                                             23.
Cal.4th at p. 136; People v. Hall (2011) 200 Cal.App.4th 778, 781.) “A defendant has no
right to instructions on lesser related offenses, even if he or she requests the instruction
and it would have been supported by substantial evidence, because California law does
not permit a court to instruct concerning an uncharged lesser related crime unless agreed
to by both parties. [Citations.]” (People v. Jennings (2010) 50 Cal.4th 616, 668.)
“[A]llowing the defendant to obtain instructions on lesser uncharged and unincluded
offenses interferes impermissibly ‘with ... the prosecutor’s discretionary function to select
the offenses of which the defendant may be charged and convicted.’ [Citation.]” (People
v. Birks, supra, 19 Cal.4th at p. 123, italics added; People v. Batchelor (2014) 229
Cal.App.4th 1102, 1116.) There is also no federal constitutional right for a defendant to
compel the court to give instructions on lesser related offenses. (People v. Foster (2010)
50 Cal.4th 1301, 1343; People v. Hall, supra, 200 Cal.App.4th at p. 783.)
       Thus, the court may choose to grant a defendant’s request for a lesser related
instruction if substantial evidence supports the instruction and the prosecutor consents.
However, the court commits error if it instructs on a lesser related offense over the
prosecutor’s objection. (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387; People
v. Lam, supra, 184 Cal.App.4th at p. 583.)
       As applied to this case, it is undisputed that gross vehicular manslaughter is a
lesser related but not a lesser included offense of second degree murder. (People v.
Sanchez (2001) 24 Cal.4th 983, 991, overruled on another ground in People v. Reed
(2006) 38 Cal.4th 1224, 12281229; People v. Batchelor, supra, 229 Cal.App.4th at
p. 1116.) Indeed, defendant conceded that point at trial and has done so again on appeal.
Nevertheless, defendant attempts to conflate the court’s due process duty to instruct on
lesser included offenses to claim a similar due process violation from the court’s decision
to grant the prosecution’s motion to amend the information and dismiss a lesser related
offense. As we have explained, she did not have a due process right to have the jury
instructed on the lesser related offense of gross vehicular manslaughter while intoxicated.

                                             24.
The court’s decision to grant the prosecution’s motion to amend did not violate her due
process right to have a jury instructed on all lesser included offenses supported by the
evidence.
       Defendant next asserts the prosecutor moved to amend the information and
dismiss the manslaughter charge to “gain a tactical advantage” over her by waiting until
“the last minute.” Defendant complains the prosecutor knew defense counsel’s strategy
was to argue that she committed gross vehicular manslaughter and not murder, but the
prosecutor “sandbagg[ed]” counsel and moved to dismiss the manslaughter charge to
achieve a “tactical advantage” by depriving her of that defense.
       As we have explained, section 1009 “authorizes amendment of an information at
any stage of the proceedings provided the amendment does not change the offense
charged in the original information to one not shown by the evidence taken at the
preliminary examination. If the substantial rights of the defendant would be prejudiced
by the amendment, a reasonable postponement not longer than the ends of justice require
may be granted. The questions of whether the prosecution should be permitted to amend
the information and whether continuance in a given case should be granted are matters
within the sound discretion of the trial court and its ruling will not be disturbed on appeal
absent a clear abuse of discretion….” (People v. Winters, supra, 221 Cal.App.3d at
p. 1005, italics added; People v. Burnett (1999) 71 Cal.App.4th 151, 165; People v.
Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 15801581.)
       Defendant and her attorney were always aware that she faced the serious charge of
second degree murder. While counsel obviously hoped to persuade the jury that
defendant was only guilty of the less serious offense of gross vehicular manslaughter
while intoxicated, the dismissal of that charge would not have been likely to affect
counsel’s preparation to defend against the more serious murder count. If the amendment
had such an effect, however, counsel could have simply moved for a reasonable
postponement, and the court would have been obliged to grant the motion. Counsel’s

                                             25.
failure to do so begs the question of whether the dismissal of the manslaughter charge
affected his preparation to defend against the murder charge.
       Defendant argues the prosecutor’s motion to amend was a vindictive act and taken
in retaliation for defendant’s refusal to plead guilty to second degree murder, and
defendant was harmed by exercising her right to a jury trial on the murder charge.
“Under the due process clause, prosecutors may not take “ ‘certain actions against a
criminal defendant, such as increasing the charges, in retaliation for the defendant’s
exercise of constitutional rights. [Citations.] It is not a constitutional violation, however,
for a prosecutor to offer benefits, in the form of reduced charges, in exchange for a
defendant’s guilty pleas, or to threaten to increase the charges if the defendant does not
plead guilty. [Citations.] In the pretrial setting, there is no presumption of vindictiveness
when the prosecution increases the charges or, as here, the potential penalty. [Citations.]
Rather, the defendant must ‘prove objectively that the prosecutor’s charging decision was
motivated by a desire to punish him for doing something the law plainly allowed him to
do.’ [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 98.)
       However, “in the ‘give-and-take’ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or reject the
prosecution’s offer.” (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363; see People v.
Matthews (1986) 183 Cal.App.3d 458, 466467; People v. Hudson (1989) 210
Cal.App.3d 784, 788789.) “A prosecutor should remain free before trial to exercise the
broad discretion entrusted to him to determine the extent of the societal interest in
prosecution. An initial decision should not freeze future conduct.” (United States v.
Goodwin (1982) 457 U.S. 368, 382, fn. omitted.)
       Defendant never raised a prosecutorial misconduct objection below, perhaps
because there is no evidence of vindictiveness in the prosecutor’s ultimate decision to
only go forward on the murder charge after the failure of plea negotiations.



                                             26.
       Finally, we note that the jury was well aware of the decision it faced with the
second degree murder charge. The court permitted defense counsel to argue that
defendant made an irresponsible and negligent choice to drive that night, under the honest
but mistaken belief that she was okay, but she did not act with malice and she was not a
murderer. Nevertheless, it found her guilty of murder.
II.    Amendment of the Abstract
       In addition to the felony counts I and II, defendant was charged and convicted in
count III of misdemeanor driving with a license suspended for a DUI conviction (Veh.
Code, § 14601.2, subd. (a)). She was sentenced to 15 years to life for count I, with a
concurrent term of three years for count II, and time served for count III.
       Defendant contends the abstract of judgment must be amended because it does not
reflect the sentence imposed for misdemeanor count III. “An abstract of judgment is not
the judgment of conviction; it does not control if different from the trial court’s oral
judgment and may not add to or modify the judgment it purports to digest or summarize.
[Citation.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The ultimate purpose of the
abstract of judgment is to act as a synopsis of the trial court’s judgment for prison
authorities who are responsible for the execution of the defendant’s sentence. (Ibid.;
People v. Hong (1998) 64 Cal.App.4th 1071, 1076.)
       The Judicial Council has statutory authorization to determine the contents of what
is to appear in the “felony” abstract of judgment. (§ 1213.5; People v. Hong, supra, 64
Cal.App.4th at p. 1082.) These forms do not have entries for misdemeanor convictions
but permit entries for “other orders.” An entry noting a misdemeanor conviction could
apparently be made as an “other order” at paragraph 12, though such an entry does not
appear to be legally required. We grant defendant’s request to modify the abstract
accordingly at paragraph 12. (People v. Kim (2012) 212 Cal.App.4th 117, 123124.)




                                             27.
                                     DISPOSITION
       The abstract of judgment is amended to include defendant’s misdemeanor
sentence in paragraph 12. The trial court shall prepare and forward to all appropriate
parties a certified copy of an amended abstract of judgment. In all other respects, the
judgment is affirmed.

                                                                _____________________
                                                                POOCHIGIAN, J.
WE CONCUR:


______________________
LEVY, Acting P.J.


______________________
FRANSON, J.




                                            28.
