Filed 4/28/14 P. v. McDonald CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135715
v.
JOHN BRIAN MCDONALD,                                                 (Contra Costa County
                                                                     Super. Ct. No. 51105030)
         Defendant and Appellant.


         A jury convicted defendant John Brian McDonald of two counts of vehicular
manslaughter and one count of leaving the scene of an injury accident.1 It also found true
an enhancement that McDonald fled the scene, but it rejected an enhancement that
McDonald inflicted great bodily injury.2 After denying McDonald probation, the trial
court sentenced him to a total term of seven years imprisonment. On appeal, McDonald
argues that insufficient evidence supported his convictions, his trial counsel was
ineffective, the jury was improperly instructed, the prosecutor engaged in misconduct
during closing argument, his motion for new trial was improperly denied, and he was
wrongly denied probation. We disagree with these arguments and affirm.


1
 These counts were based on Penal Code section 192, subdivision (c)(1) and Vehicle
Code section 20001, subdivision (a).
2
 The enhancement for fleeing the scene was based on Vehicle Code section 20001,
subdivision (c), and the enhancement for inflicting great bodily injury was based on Penal
Code section 12022.7, subdivision (a). All further statutory references are to the Penal
Code unless otherwise indicated.


                                                             1
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       This case arose out of a deadly traffic accident that occurred when a car driven by
Shanie Hansen crossed into an oncoming lane of traffic and crashed into a motorcycle,
killing the motorcycle’s driver and passenger and seriously injuring Hansen. The
prosecution’s case centered on the theory that McDonald, who was driving a truck while
travelling in the same direction alongside Hansen, forced Hansen into oncoming traffic in
an act of road rage and then fled the scene.
       Although many of the facts about McDonald’s involvement in the accident are
disputed, some are not. It is undisputed that in the minutes leading up to the accident
Hansen and McDonald were driving separate vehicles westbound on Vasco Road, which
is a bypass for State Route 4 (the bypass). Hansen was driving a car, a Honda, and
McDonald was driving a black truck while towing a boat. As she drove, Hansen was not
using a seat belt, was not wearing shoes, and did not have her left foot on the floorboard.3
       The portion of the westbound bypass relevant to this case alternates at different
places between one or more lanes, often depending on the presence of a turn lane or a
merge lane. At two places—immediately after it intersects with Balfour and Sand Creek
Roads—the bypass narrows and two lanes merge into one. As McDonald and Hansen
passed through each of these intersections, McDonald was driving in the lane nearest the
center divide (lane one) and Hansen was driving one lane over (lane two). Although
McDonald and Hansen disagreed about the details, they agreed that at both locations
Hansen left the intersection in lane two and pulled in front of McDonald to merge into
lane one as lane two was ending. Hansen’s testimony about McDonald’s behavior during
and after these merges described road rage on the part of McDonald. McDonald’s
testimony about Hansen’s behavior described irresponsible driving on the part of Hansen.


3
  McDonald testified that Hansen’s left foot was hanging out the driver’s-side window of
the Honda, but Hansen testified that her left leg was bent at the knee and tucked up under
her as she drove. Hansen denied that she had her left foot out the window.


                                               2
       The accident happened farther down the road, near the Lone Tree overpass, where
the westbound bypass once again widened to two lanes. Immediately before the accident,
Hansen was driving in lane one and McDonald pulled up alongside her in lane two.
Hansen testified that McDonald forced her into the center divide, causing her to lose
control and spin into the oncoming lane of traffic; McDonald admitted that he was
driving alongside Hansen at the time, but he denied forcing Hansen into the center divide
and suggested that the accident was caused by Hansen’s poor driving. Although
McDonald denied seeing the accident or knowing that anyone was injured, he admitted
that he saw a dust cloud on the other side of the road from his side-view mirror, assumed
that it was caused by the Honda, and did not stop. Many of the remaining details about
these events are disputed, and we will discuss the relevant ones in addressing the specific
arguments McDonald raises in this appeal.
       The trial lasted over a two-week period in February and March 2012, and
McDonald’s appeal includes challenges based on four events that occurred during it.
First, the prosecution’s accident-reconstruction expert incorrectly testified that she had
previously testified at McDonald’s preliminary hearing. Second, a highway patrol officer
incorrectly testified that Hansen identified McDonald as the driver of the truck from an
array of photographs she was shown some time after the accident. Third, over
McDonald’s objections, the trial court instructed the jury about consciousness of guilt by
a defendant who makes false statements. And fourth, in closing argument, the prosecutor
commented on defense counsel’s theories and arguments in ways that McDonald argues
were inappropriately derogatory and misstated the law.
       The jury found McDonald guilty of two counts of vehicular manslaughter and one
count of leaving the scene of an injury accident. It also found true an enhancement that
McDonald fled the scene of the accident, but it rejected an enhancement that McDonald
inflicted great bodily injury.
       After the trial, the trial court entered two additional rulings that are relevant to this
appeal. First, the trial court denied a motion for a new trial in which McDonald argued
that the prosecution improperly failed to disclose in advance of trial all statements by the


                                               3
prosecution’s expert. Second, the trial court denied McDonald’s request to be placed on
probation instead of being incarcerated.
       This timely appeal followed.
                                              II.
                                         DISCUSSION
       A.     Sufficient Evidence Supports McDonald’s Convictions.
       McDonald first argues that “there was insufficient reasonable and credible
evidence of solid value to prove beyond a reasonable doubt that his driving caused
Hansen to lose control of her car” or “to support [McDonald’s] conviction for failure to
stop at an injury accident.” We disagree.
       To evaluate a claim of insufficient evidence, “ ‘we review the whole record to
determine whether . . . [there is] substantial evidence to support the verdict . . . such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.’ ” (People v. Manibusan (2013)
58 Cal.4th 40, 87.) Under this standard, we “ ‘ ‘ “ ‘must review the whole record in the
light most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” ’ ”
[Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) “ ‘Substantial
evidence includes circumstantial evidence and any reasonable inferences drawn from that
evidence. [Citation.]’ [Citation.] We ‘ “ ‘presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ ”
[Citation.]’ [Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 943.) “ ‘Although it is
the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of
two reasonable interpretations, one of which suggests guilt and the other innocence, it is
the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a
reasonable doubt. [Citation.]’ [Citation.] Where the circumstances reasonably justify


                                               4
the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also
reasonably be reconciled with a contrary finding does not warrant the judgment’s
reversal. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
              1.      Substantial Evidence Supports McDonald’s Convictions for
                      Vehicular Manslaughter.
       McDonald’s convictions for vehicular manslaughter are supported by ample, and
certainly substantial, evidence. The most direct evidence supporting the convictions was
eyewitness testimony of at least two witnesses that McDonald forced Hansen into the
oncoming lane of traffic near the Lone Tree overpass. Hansen testified that she was
driving in lane one and that McDonald had been tailgating her and pulled up next to her
in lane two. She thought that McDonald was going to pass her on the right, but instead
he drove alongside her. She testified that McDonald started encroaching into her lane
and squeezing her toward the center divide. In her words, McDonald started “drifting
into [her] lane, slowly,” and she was “inching out as he was inching in.” She testified
that McDonald continued encroaching until he was “at least 80 percent in [her] lane.”
She started to hit “these little cones in the middle of the road” and went “completely on
the other side,” and her car started to spin.
       A witness who had been driving the vehicle immediately in front of Hansen, Jack
Anderson, also provided eyewitness testimony. He agreed with Hansen’s testimony that
McDonald encroached into lane one and squeezed Hansen toward the center divide. In
his words, as a result of the encroachment, Hansen did not have “room to continue
traveling on the same direct course down [lane one].”
       Since McDonald acknowledged that he knew that Hansen was driving next to him
in lane one at the Lone Tree overpass, the eyewitness testimony of Hansen and Anderson
constituted substantial evidence supporting the convictions for vehicular manslaughter.
But additional evidence was presented upon which the jury also could have relied in
rendering its verdict. First, the prosecution’s expert witness testified that there was “no
physical evidence to indicate that the Honda was actually going towards [lane two]”
before it spun out of control. This evidence undercut McDonald’s insinuation that


                                                5
Hansen caused the accident herself by first turning toward his truck and then spinning out
of control while correcting her steering. And a person who arrived on the scene
immediately after the accident testified that she came upon Hansen who was crying and
kept repeating “He ran me off the road. He ran me off the road. He ran me off the road.”
       The jury’s verdict that McDonald had acted intentionally or with gross negligence
was corroborated by the evidence that suggested he had been angry with, and aggressive
toward, Hansen before the accident. Hansen testified that her first encounter with
McDonald was immediately after the Balfour Road intersection. She was in lane two,
which was ending, and trying to merge into lane one. The road was congested, traffic
was slow, and McDonald was “right beside [her]” in lane one. She had her blinker on,
but McDonald refused to let her “merge over,” even when she slowed down or sped up.
Eventually, McDonald slowed down, a large gap was created between his truck and the
vehicle in front of him, and Hansen was forced to “accelerate and get in front of him”
before her lane ended. Hansen testified that after this merge, McDonald was tailgating
her and “flipping [her] off.” According to Hansen, McDonald was so close to her that
she could see only the truck’s grill and lights in her rear-view mirror. The road again
widened into two lanes, and Hansen moved into lane two. McDonald followed her into
lane two and continued to tailgate her until they approached Sand Creek Road where
McDonald moved back into lane one and drove up alongside Hansen.
       Hansen testified that essentially the same thing that had happened at Balfour Road
happened at Sand Creek Road. The lane she was in, lane two, was ending, and she again
needed to merge into lane one. Once again, McDonald would not let her merge until she
was forced to accelerate in front of him in order to successfully merge. McDonald again
was “flipping [her] off.” By this time, witness Anderson saw McDonald “gesture with
his hand,” and start to tailgate Hansen. In his words, McDonald “was directly on top of
the Honda.” At the Lone Tree overpass, Anderson saw McDonald move into lane two,
pull even with Hansen, but then not pass either Hansen or Anderson.
       All of this evidence taken together provides ample evidence to support the jury’s
verdict. Although we recognize that McDonald provided a very different account of the


                                             6
events, our inquiry is constrained to whether the evidence, when viewed in the light most
favorable to the judgment, was sufficiently reasonable, credible, and of solid value to
allow the jury to find him guilty beyond a reasonable doubt. (People v. Gonzales and
Soliz, supra, 52 Cal.4th at p. 294.) We conclude that the cumulative evidence in this case
satisfies this standard.
               2.     Substantial Evidence Supports McDonald’s Conviction for
                      Failing to Stop at an Accident Involving an Injury.
       We also conclude that substantial evidence supports McDonald’s conviction for
failing to stop at the scene of an injury accident. McDonald admitted that he knew
Hansen had been driving next to him at the Lone Tree overpass, saw in his side-view
mirror a dust cloud on the other side of the road, assumed it was the Honda, but did not
stop. He simply argues that he had no duty to stop because he was not “involved” in the
accident and did not know that anyone was injured, as required by the instruction given to
the jury. This argument fails because the jury’s findings that he was guilty of two counts
of voluntary manslaughter—findings that we have already concluded were supported by
substantial evidence—establish that he was involved in, and therefore knew about, the
accident.
       Furthermore, separate circumstantial evidence was presented upon which a
reasonable jury could have relied to conclude that McDonald left the scene knowing that
he had been involved in the accident. Immediately after the accident, Anderson tried to
take a picture of the license plate of McDonald’s truck. He was in lane one, and
McDonald was driving behind him in lane two. Anderson slowed down to about 40 or 50
miles an hour, but McDonald slowed “proportionate to what [he] was doing.” Anderson
tried to make a series of maneuvers to get behind McDonald, but, in his words, “[t]he
truck immediately changes lanes and gets behind me and slows down.” Evidence was
also presented that McDonald eventually drove back to his sister and brother-in-law’s
house, where he was staying at the time. The day after the accident, McDonald’s brother-
in-law told him about a newspaper report that law enforcement officials were looking for




                                             7
the owner of a black truck. McDonald’s brother-in-law asked McDonald to leave
because McDonald did not turn himself in.
          The jury could have inferred from this evidence that McDonald was trying to
avoid being identified because he knew he had been involved in the accident. Given this
evidence, and the jury’s findings that McDonald was guilty of two counts of voluntary
manslaughter, we reject his argument that insufficient evidence supported his conviction
for failing to stop at the scene of an injury accident.
          B.    McDonald Fails to Demonstrate that his Defense Counsel Was
                Prejudicially Ineffective.
          McDonald argues that his defense counsel was ineffective by failing to cross-
examine two witnesses fully. First, he argues that his counsel should have cross-
examined the prosecution’s accident-reconstruction expert about her incorrect testimony
that she had testified at McDonald’s preliminary hearing. Second, he argues that his
counsel should have cross-examined a highway patrol officer who incorrectly testified
that Hansen identified McDonald as the driver of the truck from an array of photographs
she was given some time after the accident. We conclude that it was neither ineffective
nor prejudicial for defense counsel to fail to cross-examine these witnesses on these
points.
          To establish a claim of ineffective assistance of counsel, a defendant must show
that (1) trial counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and (2) the defendant suffered prejudice, i.e., there
is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 694 (Strickland); People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
(Strickland, supra, 466 U.S. at p. 694; Carter, supra, 30 Cal.4th at p. 1211.) The
defendant must show that “ ‘the [act or] omission was not attributable to a tactical
decision which a reasonably competent, experienced criminal defense attorney would
make.’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) Finally, with


                                               8
respect to prejudice, a challenger 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. Ledesma (1987) 43 Cal.3d 171, 327.) It is not enough
‘to show that the errors had some conceivable effect on the outcome of the proceeding.”
“ ‘ “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” ’ [Citation.]” (People v. Mercado (2013) 216 Cal.App.4th 67,
80)
       McDonald fails to satisfy these requirements. As for the prosecution’s accident-
reconstruction expert, although it is true that she incorrectly testified at trial that she had
previously testified at McDonald’s preliminary hearing, the parties filed a subsequent
stipulation clarifying that the expert in fact had not testified at the preliminary hearing.
Similarly, although it is also true that the highway patrol officer incorrectly testified that
Hansen had identified McDonald as the driver of the truck from an array of photographs,
the parties filed another stipulation to clarify that this testimony was incorrect. These
stipulations corrected any conjectural error by defense counsel in failing to cross-examine
the witnesses on these points, and McDonald therefore cannot establish that his trial
counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms. (Strickland, supra, 466 U.S. at pp. 687-688; Carter,
supra, 30 Cal.4th at p. 1211.)
       Furthermore, there was no prejudice. The expert’s testimony that she had testified
at the preliminary hearing was hardly damaging to McDonald since the expert candidly
admitted that she could not remember any of the specifics of that testimony. If anything,
the stipulation that the expert in fact had not testified at the preliminary hearing
undermined her credibility and kept the prosecution from rehabilitating it. And the
highway patrol officer’s testimony that Hansen had picked out McDonald as the truck
driver from an array of pictures was not damaging because McDonald’s identity was
never disputed at trial. Under these circumstances, McDonald cannot demonstrate a
reasonable probability that, but for his counsel’s alleged errors, the result of the trial


                                               9
would have been different. (See Strickland, supra, 466 U.S. at pp. 687-688, 694; Carter,
supra, 30 Cal.4th at p. 1211.)
       C.      The Jury Was Not Improperly Instructed on Inconsistent Statements.
       McDonald argues that the trial court improperly instructed the jury on a
defendant’s inconsistent statements and consciousness of guilt. This standard instruction,
based on CALCRIM No. 362, told the jury that “[i]f the defendant made a false or
misleading statement before this trial relating to the charged crime, knowing the
statement was false or intending to mislead, that conduct may show he was aware of his
guilt of the crime and you may consider it in determining his guilt.” McDonald contends
this instruction was improper because he had made “no significant inconsistent
statement,” and the instruction “had the effect of focusing the jury’s attention on minor
excusable inconsistencies they might have considered to show consciousness of guilt.”
We disagree.
       To begin with, McDonald did make inconsistent statements before his trial. As
one example, McDonald testified that immediately before Hansen swerved out of control
she “was off to [his] left side.” When asked if she was “behind the front of your bumper
a little bit, then?,” he responded, “Yeah. Yeah. Yes.” But before trial, McDonald told
an investigator that he believed the crash was caused when Hansen’s car “had just begun
to extend with its front beyond the front of [his] vehicle . . . [and] the female driving the
Honda decided she did not have sufficient space or time to continue advancing forward
and beyond [his] truck to maneuver a lane change in front of [him] without colliding into
[his] driver’s side or the SUV travelling in front of [him].” In other words, before trial
McDonald suggested that Hansen crashed after losing control in a failed effort to pass
him and pull into his lane, although at trial he suggested that Hansen crashed after losing
control while she was driving alongside of him. Although this inconsistency may have
been slight or innocuous, the prosecution was free to argue—and the jury was free to
conclude—that the differences were meaningful and an indication of McDonald’s guilt.
       In any event, the trial court instructed the jury that all the instructions were not
necessarily applicable: “Some of these instructions may not apply, depending on your


                                              10
findings about the facts of the case. Do not assume just because I give a particular
instruction that I’m suggesting anything about the facts.” (CALCRIM No. 200.) Thus, if
the jury had found that there were no inconsistencies in McDonald’s statements, it would
have followed this instruction by deeming inapplicable the instruction on inconsistent
statements. We fail to see how McDonald was prejudiced under these circumstances.
       D.     McDonald Fails to Demonstrate that the Prosecutor Engaged in
              Prejudicial Misconduct During His Closing Argument.
       McDonald argues that the prosecutor engaged in prejudicial misconduct by
disparaging defense counsel and misstating the law in closing argument. He further
argues that his trial counsel’s failure to object to this misconduct constituted ineffective
assistance of counsel. We disagree with both of these arguments.
       At the outset, we conclude that McDonald waived his claims of prosecutorial
misconduct by failing to object below. (People v. Hill (1998) 17 Cal.4th 800, 820
[defendant may not complain on appeal of prosecutorial misconduct unless defendant
objected below in timely fashion and on same ground and requested jury be admonished
to disregard impropriety].)
       But even if McDonald had properly preserved the argument, we would conclude
that it is unpersuasive. McDonald first claims that during closing argument the
prosecutor made disparaging remarks about defense counsel. These comments included
that defense counsel “followed up with a quick slide in,” “gloss[ed] over” critical facts,
did a “bait and switch,” engaged in a “game of Three Card Monte,” and “jump[ed] ship
and bail[ed] out” of an idea. McDonald asserts that these comments were “outrageous,”
but we disagree. Prosecutors are “ ‘ “given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom.
[Citations.]” ’ ” . . . “A prosecutor may ‘vigorously argue his case and is not limited to
“Chesterfieldian politeness” ’ [citation], and [the prosecutor] may ‘use appropriate
epithets. . . .” ’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567-568).” (People v.
Williams (1997) 16 Cal.4th 153, 221.) We have found no authority supporting the notion


                                              11
that attorneys must refrain from the type of metaphors and colloquialisms that the
prosecutor used here when arguing the weakness of the other side’s arguments.
       Furthermore, none of these comments was prejudicial. “ ‘[W]hen the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion.’ [Citation.]” (People v. Smithey (1999)
20 Cal.4th 936, 960.) A defendant’s conviction will not be reversed for prosecutorial
misconduct unless it is reasonably probable that a result more favorable to the defendant
would have been reached if the misconduct had not occurred. (People v. Crew (2003)
31 Cal.4th 822, 839.) We conclude that it is not reasonably probable that the jury here
would have come to a different conclusion if the prosecutor had not made these
comments.
       Because we conclude that the prosecutor’s comments did not amount to
misconduct and were not prejudicial, we reject McDonald’s claim that his counsel was
ineffective for not objecting to them. Counsel is not ineffective in failing to object when
the trial court would likely have overruled the objection. (People v. Mendoza (2000)
78 Cal.App.4th 918, 924.)
       McDonald separately argues that during closing argument the prosecutor misstated
the law about leaving the scene of an accident. Essentially, he argues that the prosecutor
incorrectly argued to the jury that McDonald could be found guilty of failing to stop at an
injury accident if he was simply aware of the accident, rather than having been “involved
in the accident” and having known “that the accident was of such a nature that one would
reasonably anticipate that it resulted in injury to a person.”
       In reviewing a claim that a prosecutor misstated the law during closing argument,
“we presume that the jury relied on the instructions, not the arguments, in convicting
defendant. ‘[I]t should be noted that the jury, of course, could totally disregard all the
arguments of counsel.’ [Citation.] . . . [O]ur presumption [is] that ‘the jury treated the
court’s instructions as statements of law, and the prosecutor’s comments as words spoken



                                              12
by an advocate in an attempt to persuade.’ [Citation.]” (People v. Morales (2001)
25 Cal.4th 34, 47, italics omitted.)
       Our review of the closing argument does not reveal any clear misstatements of the
law by the prosecutor, much less any that were prejudicial. To the extent the prosecutor
was imprecise regarding the knowledge element of leaving the scene of an accident, he
himself clarified any confusion by stating that the definition requires that “you [a
defendant] are an involved party.”
       More importantly, it is undisputed that the actual instruction given by the court
was a proper summary of the law. It stated that “[t]o prove the defendant is guilty” of a
violation of Vehicle Code section 20001, “[t]he People must prove that: [¶] 1. While
driving the defendant was involved in a vehicle accident; [¶] 2. The accident caused the
death of or permanent, serious injury to someone else; [¶] 3. The defendant knew that he
had been involved in an accident that injured another person or know from the nature of
the accident it was probable that another person had been injured; [¶] 4. The defendant
willfully failed to perform one or more of the following duties: (a) To immediately stop
at the scene of the accident; (b) To provide reasonable assistance to any person injured in
the accident; [¶] . . . [¶] (e) The driver must, without unnecessary delay, notify either the
police department of the city where the accident happened or the local headquarters of the
California Highway Patrol if the accident happened in an unincorporated area. [¶]
Someone commits an act willfully when he or she does it willingly or on purpose. It is
not required that he or she intend to break the law, hurt someone else, or gain any
advantage. [¶] Duty to stop means the driver must stop his or her vehicle as soon as
reasonably possible under the circumstances.” This instruction was clear and
straightforward, and we must presume that the jury relied upon it in rendering its verdict.
(People v. Morales, supra, 25 Cal.4th at p. 47.) Based on this clear instruction and the
ample evidence supporting the jury’s verdict, we conclude it is not reasonably probable
that McDonald would have obtained a more favorable verdict had his counsel timely
objected to any of the prosecutor’s supposedly incomplete statements of law.



                                              13
       E.     The Trial Court Did Not Abuse its Discretion in Denying McDonald’s
              Motion for New Trial.
       During the trial, the prosecution’s accident-reconstruction expert testified that she
had discussed witnesses’ statements with an investigator from the District Attorney’s
Office at some time more than a year before the trial. McDonald claims that he was not
informed of these statements until the trial and that the prosecutor’s failure to notify him
of them in advance of the trial violated section 1054.1.4 We disagree and conclude there
was neither a violation nor any prejudice.
       We review the denial of a motion for a new trial made on a nonconstitutional
ground for abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328.) Here, the
trial court did not abuse its discretion in denying McDonald’s motion for new trial.
Under section 1054.1, subdivision (f), a prosecutor is required to disclose “[r]elevant
written or recorded statements of witnesses whom the prosecutor intends to call at the
trial, including any reports or statements of experts made in conjunction with the
case . . . .” In arguing that the prosecutor violated this provision, McDonald quotes only
part of it: the subordinate clause without its introductory word, “including.” He quotes
the section as requiring prosecutors to disclose “any reports . . . of experts made in
conjunction[] with the case.” But a reading of the plain language of the full statute
reveals that its scope is limited to “written or recorded” statements. We find no evidence
in the record that any pretrial statement made by the prosecution’s accident-
reconstruction expert was either written or recorded.
       Furthermore, even if the prosecutor could be considered to have failed to satisfy
discovery obligations by not notifying McDonald of the expert’s oral statements before
trial, we conclude that McDonald suffered no prejudice. McDonald argues that he was
“unprepared for the unknown and . . . was ambushed at trial.” The prosecution’s expert
testified that there “was no physical evidence to indicate that the Honda was actually


4
  In the motion for new trial, McDonald argued that the prosecution’s failure to provide
the statements constituted a violation of his federal and state rights. He does not pursue
his federal argument on appeal.

                                             14
going towards [lane two]” before it spun out of control. McDonald’s expert, who
testified after the prosecution’s expert, contradicted this testimony by opining that
Hansen was travelling toward lane two before steering to the left, which caused her to
lose control. Although he claims to have been surprised by the prosecution expert’s
testimony, McDonald fails to explain in any specific way how he would have defended
the case differently or effectively impeached the prosecution’s expert if he had known
earlier about the expert’s prior statements. Under these circumstances, we conclude that
McDonald has failed to show that there is a reasonable probability that any error
contributed to the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) Stated another
way, after examining the entire record, we are not “ ‘ “ ‘of the “opinion” that it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the [alleged] error.’ ” ’ ” (People v. Wilkins (2013) 56 Cal.4th
333, 351.)
       F.      The Trial Court Did Not Abuse its Discretion in Denying Probation.
       We review a trial court’s denial of probation under the deferential abuse of
discretion standard of review. (See, e.g., § 1203.1; People v. Carbajal (1995) 10 Cal.4th
1114, 1120-1121; People v. Bradley (2012) 208 Cal.App.4th 64, 89.) “ ‘The burden is on
the party attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’ ”
(People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 977-978, quoting People v.
Superior Court (Du) [(1992)] 5 Cal.App.4th [822, 831].)
       We conclude that McDonald has failed to show that the trial court’s decision to
deny him probation was irrational or arbitrary. Our review of the record shows that the
trial court carefully considered McDonald’s sentence. It issued a tentative sentencing
decision, allowed the parties to respond, and then adopted the tentative decision as its
final order.




                                              15
       In determining McDonald’s base term, the trial court imposed the lower, two-year,
term for the convictions for vehicular manslaughter and added five years for the
enhancement of fleeing the scene. The court explained, “I believe the mitigated or lower
term is [warranted] based on [McDonald’s] absolutely clean record, the fact that he has
strong family support[,] and the tremendous financial impact that [the sentence] will have
on his family.” The trial court also ordered concurrent sentences: “I’m not going to . . .
make consecutive the sentences on the three different crimes of which he was convicted.”
Thus, McDonald was sentenced to a total of seven years.
       Turning to probation, the court in its tentative decision stated, “I’ve considered
carefully the seriousness of the crime, the fact that two people died, that the victims were
vulnerable[,] . . . [¶] [and t]hat [McDonald] was an active participant in the crime. [¶]
I’ve weighed carefully the terrible impact this will have on [McDonald’s] family and the,
perhaps, inability of him to make restitution, but I believe there was insurance involved.
But I balanced all of that in weighing also the tremendous tragic impact on the family and
friends of the victim[s]. [¶] And all of those weighed together, I come down with the
decision to deny probation. . . .” In adopting its tentative decision, the trial court pointed
out that McDonald “knew he’d been involved in an accident. And instead of calling the
police immediately or pulling over, which he should have done, he left.” The court
explained, “had Mr. McDonald pulled over and the same findings made by the jury, I
would have very carefully considered a suspended sentence and probation. Had he even
called when his brother-in-law told him, hey, the police think it’s you; you better call
them, I would have considered even closer, or further away—I would have considered a
suspended sentence.” Finally, the court commented that it did not deny probation “with
any sense of satisfaction. I know the terrible impact this will have on [McDonald’s]
family. But the law requires appropriate consequences for conduct, and this is what I feel
is the appropriate consequence.”
       The trial court observed that this case was particularly “tragic in all of its
aspect[s].” We could not agree more. But in sentencing McDonald, the trial court



                                              16
properly weighed the evidence and appropriate factors, and it was neither arbitrary nor
irrational for it to deny probation. Thus, we lack the authority to alter the sentence.
                                            III.
                                        DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Humes, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Rivera, J.




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