Filed 10/12/18
                        CERTIFIED FOR PARTIAL PUBLICATION*




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Placer)
                                               ----




THE PEOPLE,                                                          C081739

                 Plaintiff and Respondent,                  (Super. Ct. No. 62126825)

        v.

ANDREY YUSHCHUK,

                 Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Placer County, Mark S. Curry,
Judge. Affirmed.

      Law Office of Victor Haltom and Victor S. Haltom, Retained Counsel for
Defendant and Appellant.

       Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen,
Christopher J. Rench, Deputy Attorney General, for Plaintiff and Respondent.



* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part I.

                                                1
        The jury found defendant Andrey Yushchuk guilty of second degree Watson
murder (see People v. Watson (1981) 30 Cal.3d 290 (Watson)), misdemeanor drunk
driving (DUI) and misdemeanor aggravated DUI (over 0.08 percent blood-alcohol
content); it acquitted him of felony DUI-with-injury charges. (Pen. Code, § 187, subd.
(a); Veh. Code, § 23152, subds. (a) & (b), 12353, subds. (a) & (b).) The trial court
sentenced defendant to prison for an unstayed term of 15 years to life. Defendant timely
filed this appeal.
        Defendant contends (1) the trial court erred in denying his motion to acquit at the
close of the People’s case-in-chief and (2) the court misinstructed the jury regarding
permissive inferences. We disagree and shall affirm.
                                     BACKGROUND
        Although defendant claimed not to remember the crash, his primary theory at trial
was that he had consumed a large amount of vodka after the crash, from a bottle that had
been inside the car, previously unopened, while he was trapped in his car alone and in
pain.
        Facts
        Defendant is a recidivist drunk driver. On the early morning of November 14,
2012, while again driving drunk, he crossed over the centerline of the road and caused a
collision that killed Gabriel Rodriquez. A vehicle driven by Michael S. then hit
Rodriguez’s vehicle.1 A vodka bottle missing 10 ounces was in defendant’s vehicle and
he smelled of alcohol. Defendant was trapped and had to be cut out of his vehicle.
        Defendant had five prior convictions for drunk driving behavior between 1993 and
1996; four DUIs or DUI with priors and one reckless driving in lieu of DUI (wet
reckless). (Veh. Code, §§ 23103/23103.5, 23152, subds. (a) & (b).) The parties



1The jury acquitted defendant on two counts alleging his drunk driving caused injury to
Michael S.

                                              2
stipulated that two peace officers would testify about two arrests leading to DUI charges
in which defendant was involved in traffic collisions, once with a fence. When defendant
renewed his driver’s license in 2010, he would have received the standard “Watson
admonition” required by statute (see Veh. Code, §23593, subd. (a)), which states in part
that “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 influence of alcohol or drugs,
or both and, as a result of that driving someone is killed, you can be charged with
murder.” Defendant took an online traffic-school course in July 2009 that included a
Watson admonition. A former manager for a drunk driving agency testified that a person
who completed an 18-hour court-ordered DUI program--as defendant did in 1998--would
learn that drunk driving was dangerous to human life.
       Nikolay Gritsyuk testified he was defendant’s close friend and business partner; he
and defendant ran a janitorial business. After work the night before the collision he and
defendant drank in a bar, then went to a liquor store where defendant bought vodka.
They drank coffee and waited in a parking lot so Gritsyuk could sober up and would not
smell of alcohol when he returned home, but both were intoxicated. They had discussed
the dangers of drunk driving in the past. Gritsyuk asked defendant if he was “okay to
drive” and defendant said he was.
       In a prior statement to peace officers, Gritsyuk had said the pair decided not to
drive after leaving the bar around midnight, that defendant had probably had beer and a
shot or two, then they left and had food and coffee; at around 5:00 or 6:00 a.m. they left a
7-Eleven. In response to Gritsyuk’s questioning, defendant had told Gritsyuk that
defendant was “okay.”
       A criminalist testified defendant’s blood sample (taken about two hours after the
collision) tested at 0.14 percent. Most people “peak” within five to 15 minutes.
Hypothetically, a 230-pound male who “guzzles” 10 ounces of 80-proof vodka would
have a blood-alcohol level of 0.132 percent; a 240-pound male’s level would be 0.126

                                             3
percent. If that male had no alcohol in his system at 5:15 a.m. and drank 10 ounces of the
vodka, by 6:15 a.m. he would have a level of about 0.108 percent; adding an extra half-
hour to the interval would give a level of about 0.099 percent. Had he not had any
alcohol for the prior two hours before the sample, his level would be 0.18 percent. If the
male had some alcohol in his system at the time of the collision--but less than 0.08
percent--and then drank the vodka before the accident, a reading of 0.14 percent (or
0.145 percent, one of the non-rounded readings) could be achieved two hours later.
       A retired CHP officer prepared a video recording of the roadway that
approximated the lighting conditions present at the time of the collision. He described
factors that might cause a driver to cross over a centerline including intoxication and
curvature of the roadway. On cross-examination he testified there was no difficulty
seeing the speed limit signs or yellow lines on this roadway.
       Defendant’s toxicologist retested defendant’s blood sample and derived a blood-
alcohol figure of 0.12 percent, which was consistent with the original 0.14 percent
reading because he tested the sample long after the collision and the alcohol decreases in
samples over time. It was possible, depending on when a hypothetical person drank 10
ounces of vodka, for the blood alcohol to have been rising after the hypothetical collision.
Some permutations would involve having an alcohol level below 0.08 percent at the time
of the collision.
       Defendant testified and admitted five alcohol-related convictions, a DUI in 1993, a
DUI in 1994 (with an accident), a wet reckless in 1995, and two felony DUIs in 1996.
His testimony suggested he could not understand the DUI classes he had taken because
he was not then fluent in English. He testified that had no memory of the events in
question because of his injuries. He had told an insurance agent that he thought he and
Gritsyuk drank vodka before they walked around to “wear off the effect,” then he drove
Gritsyuk home, but he testified that he had been guessing based on information the
insurance agent gave him. When he renewed his license in 2010 he had not read all the

                                             4
papers. He completed an online traffic school in 2009 because of a speeding ticket, but
did not remember reading all the required material.
       Closing Arguments
       The prosecutor emphasized that this was a murder case and the jury was not
required to reach lesser homicide offenses. She argued defendant knew drunk driving
would likely cause death. She mentioned an instruction that permitted an inference about
blood-alcohol levels (see Part II, post) and told the jury it could “hang your hat on that”
in finding defendant’s blood alcohol was over 0.08 percent when he was driving. She
discussed facts relevant to defendant’s impairment, including the partly empty vodka
bottle, the odor of alcohol from his body, the lack of blood on the bottle given the
lacerations on defendant’s hands after the crash, and defendant’s confinement due to
collapse of the vehicle around him. She argued this evidence refuted the theory that
defendant rapidly drank 10 ounces of vodka either just before or just after the crash and
after he had recovered from the night’s drinking. She also argued that the People had no
burden to show any particular blood-alcohol level to support the murder charge, as both
expert witnesses testified most people are impaired below 0.08 percent.
       Defense counsel argued that not everybody who knows drunk driving is dangerous
and causes a fatal accident is guilty of murder; this was not an all-or-nothing case and
there were several lesser homicide offenses to consider. He invited the jury to consider
whether defendant was intoxicated at the time of the crash, based on the missing 10
ounces of vodka that defendant may have drunk either shortly before the collision or to
dull his pain after the collision, and counsel put more emphasis on the latter possibility.
There was no evidence defendant committed any traffic infractions (e.g., weaving,
speeding, etc.) other than crossing the centerline on a curve on a narrow road, consistent
with the view that he was not intoxicated while driving, but became intoxicated either
just before or just after the accident.



                                              5
                                       DISCUSSION
                                               I
                                      Motion to Acquit
       Defendant first contends the trial court erred in denying his motion to acquit at the
close of the People’s case-in-chief. We disagree.
       The People’s theory of second degree murder was based on implied malice
principles enunciated by our Supreme Court in Watson, supra, 30 Cal.3d 290:

               “We have said that second degree murder based on implied malice has been
       committed when a person does ‘ “ ‘an act, the natural consequences of which are
       dangerous to life, which act was deliberately performed by a person who knows
       that his conduct endangers the life of another and who acts with conscious
       disregard for life’ ” . . . .’ [Citations.] Phrased in a different way, malice may be
       implied when defendant does an act with a high probability that it will result in
       death and does it with a base antisocial motive and with a wanton disregard for
       human life. [Citation.]” (Watson, supra, 30 Cal.3d at p. 300.)
       In reviewing whether the evidence at the time of the motion to acquit was
sufficient to support a finding of implied malice, we apply the same standard as when
reviewing the sufficiency of the evidence to support a conviction, that is, “ ‘ “whether
from the evidence, including all reasonable inferences to be drawn therefrom, there is any
substantial evidence of the existence of each element of the offense charged.” ’
[Citation.] ‘The purpose . . . is to weed out as soon as possible those few instances in
which the prosecution fails to make even a prima facie case.’ [Citations.] The question
‘is simply whether the prosecution has presented sufficient evidence to present the matter
to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at
the point the motion is made. [Citations.] The question is one of law, subject to
independent review. [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
       In turn, the basic substantial evidence test is well settled, requiring that “ ‘we
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of


                                              6
solid value—from which a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504; see People v. Raley
(1992) 2 Cal.4th 870, 891 [substantial evidence “ ‘ “reasonably inspires confidence” ’ ”].)
       Defendant’s briefing either attacks or tries to weaken the Watson murder theory or
draws factual inferences in his favor, disregarding the appropriate standard of review. He
asserts that: “No evidence exists to support a finding that [the defendant] harbored
malice aforethought at the time of the accidental collision of his vehicle . . .” or “from
which one could draw reasonable inferences that a high probability of death was
occasioned by [the defendant] driving his vehicle on the morning of November 14, 2012,
and/or that [the defendant] actually perceived and appreciated any such risk of death.”
       This claim is partly based on defendant’s view that unlike in many reported cases,
his driving did not entail multiple instances of poor driving, but merely driving over the
centerline; it also partly echoes defendant’s motion to dismiss (Pen. Code, § 995) and
motion to acquit, which were based on the view that he had to have acted with knowledge
that what he was doing posed a high probability of death, not merely danger to human
life. He also proposed instructions to that effect.2
       Taking the last point first, it is not necessary to instruct the jury that malice
requires knowledge of a “high probability of death” because the equivalent formulation
of “conscious disregard for human life” is now recommended. (See People v. Knoller




2 The Attorney General claims it is not clear whether it was defense counsel who
proposed amendments to the murder instruction that would incorporate the defense
theory about the risk of death (CALCRIM No. 520) and that counsel did not request any
pinpoint instructions. Although the document containing the proposals does not show
which party requested them, they were discussed at the instructional conference. When
the trial court rejected defense counsel’s argument that CALCRIM No. 520 should be
modified or that the proposed amendments should be given as pinpoint instructions, the
court then stated “And you laid them out in writing, and they’ll be part of the court record
for the appellate review.” Thus, the record is sufficiently clear on this point.

                                               7
(2007) 41 Cal.4th 139, 152; People v. Dellinger (1989) 49 Cal.3d 1212, 1221-1222; see
also Watson, supra, 30 Cal.3d at p. 300.) The question on appeal therefore becomes
whether there was substantial evidence of such conscious disregard. There was.
        Defendant’s contrary claim fails to view the evidence in the light most favorable
to the People, which requires drawing all rational inferences in favor of the verdict.
Viewed in that light, defendant’s prior DUI convictions, the DUI and traffic classes he
took, and the admonishments he received when he renewed his driver’s license, show he
knew of the risk to human life from drunk driving. “The cases have relied upon some or
all of the following factors in upholding drunk driving-murder convictions: (1) a 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. Talamantes (1992) 11 Cal.App.4th 968, 973.) Here although
defendant’s driving may not have been particularly dangerous, there was ample evidence
defendant drove far above the legal limit, that he subjectively knew the risks to human
life of drunk driving, and he formed the intention to drive drunk despite those risks. (See,
e.g., People v. Batchelor (2014) 229 Cal.App.4th 1102, 11153 [inference from DUI
classes]; People v. Olivas (1985) 172 Cal.App.3d 984, 989 [“case-by-case approach”];
People v. Brogna (1988) 202 Cal.App.3d 700, 709 [“One 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”]; cf. People v. Contreras (1994) 26 Cal.App.4th 944, 955 [“the absence of
intoxication or high speed flight from pursuing officers does not preclude a finding of
malice”].) Accordingly, the trial court did not err in denying the motion to acquit.




3   Disapproved on another point by People v. Hicks (2017) 4 Cal.5th 203, 214, fn. 3.

                                              8
                                             II
                          Instructions on Permissive Inferences
       Defendant attacks certain instructions that permitted the jury to draw inferences
about his blood-alcohol level at the time of the collision. We find no error.
       The trial court instructed the jury (CALCRIM No. 590) that to find defendant was
under the influence for purposes of the gross vehicular manslaughter charge it had to find
that due to drinking alcohol his abilities were so impaired that he was “no longer able to
drive a vehicle with the caution of a sober person using ordinary care under similar
circumstances.” The jury was also instructed in part on permissive inferences. The
jurors were told:

              “If the People have proved beyond a reasonable doubt that the defendant’s
       blood alcohol level was .08 percent or more at the time of the chemical analysis,
       you may, but you are not required to, conclude that the defendant was under the
       influence of an alcoholic beverage at the time of the alleged offense.

             “If the People have proved beyond a reasonable doubt that a sample of the
       defendant’s blood was taken within three hours of the defendant’s driving and that
       a chemical analysis of the sample showed a blood alcohol level of .08 percent or
       more, you may, but you are not required to, conclude that the defendant’s blood
       alcohol level was .08 percent or more at the time of the alleged offense.”
       One or both of these instructions were repeated in connection with vehicular
manslaughter while intoxicated (CALCRIM No. 591), DUI causing injury (CALCRIM
No. 2100), DUI with a blood-alcohol level of 0.08 percent causing injury (CALCRIM
No. 2101), simple DUI (CALCRIM No. 2110), and DUI with a blood-alcohol level of
0.08 percent (CALCRIM No. 2111).
       None of these inference instructions were given as to the murder count, as to
which the jury was instructed (CALCRIM No. 520) that it had to find express or implied




                                             9
malice as defined.4 Nonetheless, defendant contends these instructions were improper
for two reasons: (1) The trial court should have told the jury that these instructions did
not apply to the murder count; and (2) once defendant introduced evidence contradicting
the evidence supporting the instructions, there was no basis to give them.
       As for the first point, when reviewing claims of instructional error, we ask
“whether the defendant has shown a reasonable likelihood that the jury, considering the
instruction complained of in the context of the instructions as a whole and not in
isolation, understood that instruction in a manner that violated his constitutional rights.
[Citations.] We interpret the instructions so as to support the judgment if they are
reasonably susceptible to such interpretation, and we presume jurors can understand and
correlate all instructions given.” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Because the jury was separately instructed on the elements of murder and instructed that
to return a murder verdict it had to find malice as defined, there is no reasonable
likelihood that the jury would have employed the inference instructions to supplant the
malice instructions for purposes of murder liability.
       As to the second point, we first note that although the statutes underlying the
permissive inference instructions are phrased as rebuttable presumptions (Veh. Code,
§§ 23152, subd. (b) [“it is a rebuttable presumption that the person had 0.08 percent or
more . . . of alcohol in his or her blood at the time of driving the vehicle if the person had
0.08 percent . . . at the time of the performance of a chemical test within three hours after
the driving”]; 23153, subd. (b) [same]), caselaw interprets these statutes only to permit
instruction on permissible inferences, to avoid constitutional doubts. (See Coffey v.



4 The Attorney General argues this claim is forfeited. However, although trial counsel
did not orally object to the instructions as they might implicate the second degree murder
charge, his written proposed amendments to the instructions included language that
explicitly excluded both manslaughter and murder from their ambit. We will address the
instructional claim on the merits.

                                              10
Shiomoto (2015) 60 Cal.4th 1198, 1209.) The statutes have not been amended to
conform to the caselaw. This has resulted in some confusion, as we explain in more
detail below.
       In People v. Roder (1983) 33 Cal.3d 491, our Supreme Court held that the
prosecution may not rest its case on a mandatory presumption (such as those set forth in
the statutes described immediately above) unless “the basic fact proved compels the
inference of guilt beyond a reasonable doubt.” (Id. at p. 498, fn. 7.) A mandatory
presumption “tells the trier of fact that it must assume the existence of the ultimate,
elemental fact from proof of specific, designated basic facts.” (Id. at p. 498.) Such
presumptions generally run afoul of the prosecution’s burden to prove guilt beyond a
reasonable doubt because they limit “the jury’s freedom independently to assess all of the
prosecution's evidence in order to determine whether the facts of the particular case
establish guilt beyond a reasonable doubt.” (Ibid.)
       Critically, Roder distinguished between a mandatory presumption and a
permissive inference (such as those set forth in the instructions given in this case) that
“ ‘leaves the trier of fact free to credit or reject the inference and does not shift the burden
of proof.’ ” (People v. Roder, supra, 33 Cal.3d at p. 498, quoting Ulster County Court v.
Allen (1979) 442 U.S. 140, 157.) The latter is appropriate unless “ ‘there is no rational
way the trier [of fact] could make the connection permitted by the inference.’ ” (Ibid.;
see Francis v. Franklin (1985) 471 U.S. 307, 314-315 [“A permissive inference violates
the Due Process Clause only if the suggested conclusion is not one that reason and
common sense justify in light of the proven facts”].)
       Defendant conflates the rules about rebuttable presumptions with those of
permissive inferences and argues the blood-alcohol permissive inference instructions are
properly given only when the record contains no evidence inconsistent with the
conclusion that a defendant’s blood-alcohol concentration was falling at the time of the
first test. He argues that because here there was some evidence to support his claim the

                                              11
level might have been rising at the time of the test, the instructions were inappropriate. In
support of this argument, defendant relies on People v. Moore (1998) 65 Cal.App.4th 933
(Moore). To the extent that Moore can be read to support defendant’s argument, we
disagree with Moore, as have other courts in the 20 years since it was decided. Moore
conflates rebuttable presumptions with permissible inferences, as defendant would have
us do here.5
       Moore’s error was explained in detail in People v. Beltran (2007) 157 Cal.App.4th
235, a drunk driving case. Beltran, like defendant herein, argued that one of the blood-
alcohol permissive inference instructions should not have been given where there was
evidence rebutting the inference. (Id. at p. 240.) Beltran observed that the Bench Notes
for CALCRIM Nos. 2100 and 2111 contained language indicating that the bracketed
portion of the instruction relating to the permissive inference is only appropriate if there
is no evidence to contradict the inference, similar to the CALJIC Use Note at issue in
Moore. (Beltran, at pp. 242-243 & fn. 7.) Beltran held that Moore and the CALCRIM
bench notes “fail[ed] to recognize the important legal distinction between mandatory
presumptions and permissive inferences.” (Id. at p. 243.)6 The court noted that the



5  Moore involved a charge of willful failure to care for a child. In part, the relevant
statute provides that proof of omission of a parent to provide food, clothing, and shelter,
is “prima facie evidence” that the omission “is willful and without lawful excuse.” (Pen.
Code, § 270.) Moore interpreted this part of the statute to create a mandatory
presumption that would be infirm if presented to the jury, but found the relevant jury
instruction (CALJIC No. 16.152) anticipated this point and was phrased in terms of a
permissive inference and therefore giving that instruction was not constitutional error.
(Moore, supra, 65 Cal.App.4th at pp. 937-938.) But Moore then held that because there
was evidence that the omission to provide care was not willful, giving the permissive
inference instruction was error. (Id. at pp. 938-939.)
6 Beltran also pointed out that the “holding in Moore is particularly puzzling because the
opinion specifically acknowledges that CALJIC No. 16.152 was originally drafted as a
mandatory rebuttable presumption, but had to be changed to a permissive inference in
order to conform to Roder. (Moore, supra, 65 Cal.App.4th at pp. 937-938.)

                                             12
statutory alcohol presumption was rephrased as a permissive inference instruction in
order to conform to Roder, but that the Bench Notes incorrectly retained the limitations
reserved for mandatory rebuttable presumptions. (Id. at pp. 242-243 and fn. 7.) Instead,
as a general matter, “permissive inferences do not shift the burden of production or lower
the prosecution's burden of proof. Because they may or may not be drawn by the jury,
they do not operate in an unconstitutionally pernicious manner. For these reasons,
CALJIC No. 12.61.1 may be given regardless of whether there is other evidence admitted
at trial ‘rebutting’ the inference.” (Id. at p. 244.)
       Although defendant cites Beltran for another point, he offers no explanation why
Beltran was incorrect in its criticism of Moore.7 We agree with Beltran. (See also 1
Kuwatch, Cal. Drunk Driving Law (2016) Trial Defense, § 9:114.3 [“Beltran concludes
that both the subject Bench Note and [Moore] are based on a failure to recognize the legal
distinction between a permissive inference and a rebuttable presumption”]; id.,
§ 9:113.4.) Thus, the presence of conflicting evidence on the predicate question of
whether there is sufficient evidence to trigger the inference instructions does not preclude
giving the instructions.8 If a jury finds the predicate facts not true, it will not apply the




Accordingly, the Moore court initially concluded that there was nothing ‘facially wrong’
with the revised instruction. (Id. at p. 936.)” (People v. Beltran, supra, 157 Cal.App.4th
at p. 243.)
7 The Attorney General cited Beltran and argued Moore was not correctly decided.
Although we granted defendant’s retained appellate counsel’s two requests for additional
time in which to file a reply brief, no such brief was filed.
8 We observe that the Bench Note to CALCRIM No. 2101 still provides “The court
must not give the bracketed paragraph that begins with ‘If the People have proved
beyond a reasonable doubt that a sample of’ if there is evidence that the defendant’s
blood alcohol level was below 0.08 percent at the time of the test.” (Bench Notes to
CALCRIM No. 2101 (March 2018).) This Note is incorrect for the reasons set forth in
this opinion.

                                               13
inferences. And even if it finds the predicate facts true, it is not compelled to apply the
inferences, which are wholly permissive.
       True, the statutes underlying such instructions create rebuttable presumptions, the
application of which disappears “if evidence sufficient to negate the presumed fact is
presented.” (Coffey v. Shiomoto, supra, 60 Cal.4th at p. 1210.) But because the
instructions (properly) do not, evidence negating the presumed fact will not vitiate the
legitimate inferences set forth by such instructions. (Ibid. [“ ‘inferences may nevertheless
be drawn from the same circumstances that gave rise to the presumption in the first
place’ ”].)
       Accordingly, we reject the claim of instructional error in this case.9
                                      DISPOSITION
       The judgment is affirmed.




                                                        /s/
                                                  Duarte, Acting P. J.


We concur:



     /s/
Hoch, J.



     /s/
Renner, J.



9 For this reason, we need not address defendant’s claims of prejudice or that the
prosecutor should not have referred to the presumptions in argument.

                                             14
