Filed 2/17/15 P. v. Oakley CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B248796

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. YA080803)
         v.

PERRY OAKLEY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark S. Arnold, Judge. Affirmed.
         Joanna McKim, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General,
for Plaintiff and Respondent.
      While intoxicated, defendant Perry Oakley drove an Acura sedan through a
stop sign and collided with a Toyota Camry, killing two of the Camry’s
passengers. A jury convicted him of two counts of second degree murder (Pen.
Code, § 187, subd. (a)),1 two counts of gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)), and one count each of leaving the scene of an
accident (Veh. Code, § 20001, subd. (a)), driving under the influence causing
injury (Veh. Code, § 23152, subd. (a)), and driving with an alcohol level of .08 or
more causing injury (Veh. Code, § 23152, subd. (b)). The trial court found that he
had suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-
(i)), and sentenced him to a term of 82 years to life in state prison.
      He appeals from the judgment of conviction, contending: (1) the evidence
was insufficient to prove implied malice as required for second degree murder and
(2) the trial court erred in (a) denying his pretrial Miranda motion to exclude
statements he made to the police after the accident, (b) not adequately instructing
the jury on the difference between implied malice and gross negligence,
(c) admitting two autopsy photographs of the murder victims, and (d) sustaining a
prosecution objection to defense counsel’s hypothetical question regarding whether
the stop sign at which defendant failed to stop would have been partially
obstructed. We disagree with these contentions, and affirm the judgment.


                                  BACKGROUND
      Around 11:00 p.m. on April 9, 2011, defendant drove an Acura sedan
westbound on 141st Street in Los Angeles into the intersection at Normandie
Avenue, failing to stop at the stop sign for his direction of traffic. There was no


1
      All unspecified statutory references are to the Penal Code.

                                           2
stop sign for Normandie traffic, and a Toyota Camry driven by Ralph Payne,
travelling southbound on Normandie, had just entered the intersection. Without
honking, defendant’s vehicle collided with the driver’s side of the Camry, sending
it into a nearby fence. There were four persons in the Camry: Payne, Dennis Vann
(the front passenger), Samuel Dickens and six-year-old Sylvester Payne (the rear
passengers). All of them were wearing seatbelts. Payne and Vann suffered
serious, but non-fatal injuries that required extensive hospital treatment. Dickens
and Sylvester Payne did not survive their massive blunt force injuries.
       Lonnie Smith, an off-duty Los Angeles County Sheriff’s Deputy, was inside
his nearby home when he heard the crash and went to the scene. At the
intersection of Normandie and 141st Street, he observed two Black males, one of
whom he identified as defendant. He asked if they had been involved in the
accident. They said they had, and gestured toward an Acura. Deputy Smith told
defendant to sit down, and went to inspect the Acura. The Acura was empty; the
four occupants of the Camry were still inside. When Deputy Smith looked back to
where he had left defendant, defendant had vanished.
       Gardena Police Officer Ryan Yee arrived at the crash scene. He saw only
the Camry; the Acura was not there. He left to direct traffic at Normandie and
Rosecrans, one block south of the accident. While there, defendant approached,
waving his hands. He was limping, his hands were injured, and there was blood
near an abrasion on his head. He told Officer Yee that he was driving his Acura
and was involved in a car accident. Officer Yee noticed that defendant smelled
strongly of alcohol and was slurring his speech. Asked if he had been drinking,
defendant said that he had had two Heineken beers.2 In response to questioning,


2
       A partial video and partial audio recording (with a transcript) of Officer Yee’s
interaction with defendant were admitted at trial. We have reviewed them.
                                             3
defendant said that he was driving, and his passenger was a friend named Leon.
He claimed that after the accident, someone pointed a gun at him and forced him
inside a black Nissan Altima. Leon was able to escape. He was driven about three
blocks and robbed. He managed to escape by running away. He did not ask about
the occupants of the Camry he had struck, or seek medical aid for them. He
appeared confused and had difficulty answering questions.
      Gardena Police Officer Christopher Sanderson, along with his supervisor,
Sergeant Freeman, also interviewed defendant at the scene.3 He noticed that
defendant smelled of alcohol. In response to questions by Sergeant Freeman and
Officer Sanderson, defendant stated that he picked up Leon, and they went to a
party at the home of Leon’s sister-in-law on 141st Place around 7:00 p.m., where
he drank two beers. He said that the Acura he was driving belonged to his brother
and it was mechanically sound. He was driving home with Leon when he was
involved in the accident. He initially said that he was traveling on 141st Place, and
turned left. He then corrected himself, and said that he was not on 141st Place but
on a back street. He did not think he was in the intersection when the accident
occurred, and believed that the accident happened “[p]robably on the side street.”
He said that he turned left and “[t]here[’s] a stop sign right there.” After the turn,
he did not remember anything. He later admitted that he remembered he “[h]it the
car, and it was like what happened?” He said that he was in the Acura at the scene
of the accident when the robbers told him to get out of the car. He claimed that he
left the scene of the accident because of the robbery.




3
      Videos and an audio recording (with transcript) of Officer Sanderson and Sergeant
Freeman’s interaction with defendant were admitted at trial. We have reviewed them.

                                           4
          Officer Sanderson had defendant perform several field sobriety tests, and
also administered a preliminary alcohol screening (PAS) showing results of .132 at
1:25 a.m., and .131 at 1:27 a.m. (about two hours after the accident). Based on the
PAS readings and defendant’s poor performance on the field sobriety tests,
defendant was arrested for driving under the influence. He was transported to a
hospital, where his blood was drawn at 2:08 a.m. The blood alcohol reading was
.12 percent. Later, at a second hospital, additional blood was drawn. That reading
was .11 percent.
          In Officer Sanderson’s opinion, defendant was under the influence of
alcohol when the accident occurred, and it was unsafe for him to drive. Using
standard retrograde extrapolation theory, Criminalist Norm Fort testified that
assuming a driver had PAS readings at 1:25 and 1:27 a.m. of .131 and .132, then
earlier, at 11:30 p.m., the driver’s blood alcohol level would be in the range of .14
to .15.
          Gardena Police Officer Matthew Hassoldt, an accident reconstruction expert,
examined the accident scene and found that nothing obscured the stop sign in
defendant’s direction at Normandie and 141st Street (though there was a large tree
on the right of the sign), and no evidence that the Acura took any evasive action
before striking the Camry. There were fresh gouge marks just west of a depression
in the road near the stop sign, suggesting that the Acura was travelling fast enough
to “bottom out” as it passed. The speed limit was 25 miles an hour (there was no
posted sign). Based on a conservation momentum analysis, Officer Hassoldt
determined that the Camry was traveling 27.69 miles an hour at the point of
impact, and defendant’s Acura was travelling 39.46 miles an hour. The Acura
could not have reached that speed at impact had it stopped at the stop sign, nor



                                            5
could it have created the gouge marks in the road. Based on his conclusions,
Officer Hassoldt believed that defendant was at fault in the accident.
      On December 26, 2001, a little more than nine years before the present
accident, defendant pled no contest to driving under the influence (Veh. Code,
§ 23152, subd. (a)). He had been arrested three days earlier; two breathalyzer tests
returned with blood alcohol readings of .18. As a result of his plea, defendant was
placed on summary probation, and ordered to complete a three-month alcohol
program (the HAM program). On May 29, 2002, defendant filed a certificate of
completion of the program. Craig Harvey, who was Chief of Operations for the
Los Angeles County Coroner and supervised the HAM program, testified that the
program teaches first-time drunk drivers the consequences of drinking and driving,
including that it can result in accidents causing death.


                                    DISCUSSION
   I. Sufficiency of the Evidence
      Defendant contends that his second degree murder convictions must be
reversed because the evidence was insufficient to prove implied malice. He is
incorrect. Of course, in considering this contention, we view the evidence in the
light most favorable to the judgment, and presume in support every fact that can
reasonably be inferred from that evidence. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.)
      “[M]alice 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.” (People v. Watson (1981) 30 Cal.3d 290,
300.) “‘[T]he state of mind of a person who acts with conscious disregard for life
is, “I know my conduct is dangerous to others, but I don’t care if someone is hurt

                                           6
or killed.”’ [Citation.]” (People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092
(Johnigan).)
      At base, defendant’s contention rests on a misapplication of the substantial
evidence standard and the mistaken notion that because his conduct was not as
egregious as that of intoxicated drivers convicted of murder in other cases, the
evidence here is insufficient to infer that he subjectively appreciated the risk to
human life and consciously disregarded it. However, in cases involving fatalities
resulting from driving under the influence, courts have identified four factors as
sufficient to infer implied malice: “‘(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.’ [Citation.] Although
defendant’s conduct may not have been as egregious as that of the defendants in
[other] cases . . . , sufficient evidence established each of those factors in the
present case.” (People v. Batchelor (2014) 229 Cal.App.4th 1102, 1114.)
      First, defendant does not dispute that the evidence was sufficient to prove
that he drove with a blood alcohol level above .08 percent. Based on the expert
opinion of Norm Fort, at the time of the accident defendant had a blood alcohol
level of around .14 to .15.
      Second, the evidence was sufficient to infer that he had a predrinking intent
to drive. According to his statements to Officer Sanderson and Sergeant Freeman,
he picked up Leon in the Acura (which belonged to defendant’s brother), went to a
party on 141st Place, consumed alcohol, and was driving home from the party in
the Acura when he collided with the Camry. From this evidence, the jury could
reasonably infer that before drinking, defendant intended to drive himself and Leon
to and from the party.



                                            7
      Third, the jury could infer that he knew the hazards of driving while
intoxicated. Following his prior conviction of driving under the influence, he
completed the HAM program in May 2002, which included information on the
risks of drunk driving, including the risk of collisions resulting in death.
      Finally, defendant engaged in highly dangerous driving. Travelling at
approximately 39 miles an hour in a 25 mile an hour zone, he ran an unobstructed
stop sign, entered the intersection of 141st Street and Normandie, and collided with
the Camry, making no attempt to avoid the collision. As he told Officer Sanderson
and Sergeant Freeman, “[t]here[’s] a stop sign right there,” and after he “[h]it the
car, . . . it was like what happened?”, thus suggesting that he was totally surprised
when he passed through the stop sign and struck the Camry. In short, “it took no
leap of logic for the jury to conclude that appellant acted with conscious disregard
of life and with wanton disregard of the near certainty that someone would be
killed.” (Johnigan, supra, 196 Cal.App.4th at p. 1092.)


   II. Statements to the Police
      In the trial court, defendant moved to exclude the statements he made to
Officer Yee after he approached the officer, and his later statements to Officer
Sanderson and Sergeant Freeman before Officer Sanderson administered the field
sobriety tests (FST’s). He contended that he was in custody, that the officers failed
to advise him of his Miranda rights, and that therefore all of his statements must be
suppressed. The trial court denied the motion, determining that defendant was not
in custody for Miranda purposes. On appeal, defendant contends that the trial
court erred. We disagree.




                                           8
       a. Evidence at the Hearing
       At the hearing on defendant’s motion to exclude his statements, Officer Yee
testified that he was controlling traffic at Rosecrans and Normandie, a block south
of the collision site. No other officers were present there (though many were
present at the accident scene a block away). Around 12:17 a.m., while Officer Yee
was standing on the sidewalk, defendant approached, waved his hand in the air,
and walked over. Defendant’s hands were cut and bleeding, his legs appeared cut,
and he was limping. Without being questioned, defendant volunteered that he had
been robbed and involved in a traffic collision, He pointed in the direction of the
accident. Officer Yee noticed that defendant smelled of alcohol and his speech
was slurred. Defendant walked to a light standard at the corner and said he wanted
to lean against something because his legs hurt.
       As defendant leaned against the light standard, Officer Yee asked questions
about the robbery and about the collision.4 He informed defendant that he was
“not under arrest or anything. You’re not in handcuffs, all right? We just want to
get the story straight.” At some point, other officers arrived, and one patted
defendant down for weapons. In response to Officer Yee’s questions, defendant
said that at gunpoint the robbers drove him to a location away from the collision
and took his cell phone and jewelry. Officer Yee told defendant that he “want[ed]
to find out who has the gun. . . . I ain’t trippin’ about no [traffic collision].” As to
the collision, defendant said that he was driving an Acura with his friend Leon and


4
       A 20 minute video (without audio) of the initial portion of Officer Yee’s
interaction with defendant was played at the hearing. While testifying, Officer Yee
explained relevant portions of the video. This video is not part of the record on appeal.
However, part of Officer Yee’s conversation with defendant was recorded by another
officer. A transcript of that conversation was used at the hearing and is part of the record
on appeal. We have reviewed it.

                                             9
struck another car. Officer Yee asked defendant if he had been drinking, and
defendant replied that he had had two Heineken beers.
      One of the other officers took photographs of defendant’s injuries, and fire
department paramedics arrived and spoke to him. Based on his observations,
Officer Yee called Officer Sanderson, who specialized in DUI investigations, to
come to the scene. They waited another 15 minutes or so for Officer Sanderson to
arrive.
      A video of the wait for Officer Sanderson, taken by the camera on Officer
Yee’s patrol car, was played.5 It showed defendant leaning against the light
standard at the street corner. Officer Yee stood casually to the left of defendant,
and his partner (Officer Bergeron) stood to the right. Officer Yee left to focus the
camera on his vehicle, and then returned. A third officer (Sergeant Freeman)
arrived and spoke briefly to defendant, then talked on his cell phone, and walked
away. During the wait for Officer Sanderson, the officers behaved informally, e.g.,
folding their arms, adjusting their belts, putting their hands in their pockets,
conversing with one another. There was no overt display of authority.
      Although Officer Yee estimated that he was with defendant for about 45
minutes before Officer Sanderson arrived, he also testified that Officer Sanderson
arrived around 12:45 a.m. (which is 28 minutes from 12:17, when defendant first
approached him). Lonnie Smith accompanied Officer Sanderson. In a field show
up, Smith identified defendant, who was still leaning against the light standard, as
one of the two men he had seen next to the Acura at the accident scene. Officer
Yee told Officer Sanderson that defendant smelled of alcohol and had admitted
driving the Acura. Officer Sanderson approached defendant as Officer Yee, his
partner, and two or three other officers stood nearby and chatted with each other.

5
      This video is part of the record on appeal, and we have viewed it.
                                            10
      Officer Sanderson asked defendant his name, and what happened.
Defendant said that he had come back “over here” after being robbed. Officer
Sanderson then asked questions concerning defendant’s activities throughout the
day and night, including questions concerning what he did at the party at the home
of Leon’s sister-in-law and how much he had drunk. Defendant answered each of
the questions, and said that leaving the party he was involved in the accident.
Officer Sanderson asked how much defendant had drunk at the party, and
defendant replied two beers.
      Sergeant Freeman, who was still present, then asked defendant about the
Acura. Defendant said that it was his brother’s car, but he drove it and was
responsible “lately” for the maintenance. He said that it ran “fine,” and the brakes
and headlights worked. Sergeant Freeman questioned defendant about whether he
had any medical problems or had taken any medication or smoked any marijuana.
Defendant said that he had no medical problem (except apparently asthma), had
taken no medication and had not smoked marijuana.
      Next, Sergeant Freeman asked what happened in the crash. Defendant said
that he picked up Leon, and they went to a party at the home of Leon’s sister-in-
law on 141st Place around 7:00, where he drank two beers. He was driving home
with Leon when he was involved in the accident. He initially said that he was
traveling on 141st Place, and turned left. He then corrected himself, and said that
he was not on 141st Place but on a back street. He did not think he was in the
intersection when the accident occurred, and believed that the accident happened
“[p]robably on the side street.” He said that he turned left and “[t]here[’s] a stop
sign right there.” After the turn, he did not remember anything. He later admitted
that he remembered he “[h]it the car, and it was like what happened?” He said that
he was in the Acura at the scene of the accident when the robbers told him to get

                                          11
out of the car. Defendant described being forced from the Acura and into the
robber’s vehicle at gunpoint. He was driven to a location where his jewelry was
stolen. During this questioning, defendant was never told that he had to answer
questions, and he appeared extremely calm.
      Officer Sanderson then had defendant perform several field sobriety tests,
and administered the PAS tests, after which he arrested defendant. He estimated
the arrest occurred about 20 to 25 minutes after he first arrived.


      b. Defendant Was Not in Custody
      Miranda warnings are required only when a defendant is subject to custodial
interrogation, meaning an interrogation that occurs when “‘a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way.’ [Citation.] Whether a person is in custody is an objective test; the pertinent
inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom of
movement” of the degree associated with a formal arrest.’”’ [Citation.] [¶] . . .
When reviewing a trial court’s determination that a defendant did not undergo
custodial interrogation, an appellate court must ‘apply a deferential substantial
evidence standard’ [citation] to the trial court’s factual findings regarding the
circumstances surrounding the interrogation, and it must independently decide
whether, given those circumstances, ‘a reasonable person in [the] defendant’s
position would have felt free to end the questioning and leave’ [citation].”
(People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
      On appeal (as in the trial court) defendant fails to specify a particular point
at which his interaction with the police was transformed into custodial
interrogation. Given that he contends all statements to the police should have been
excluded, he implicitly contends that he was in custody by the time he made his

                                          12
first statements to Officer Yee. He appears to concede that his initial encounter
with Officer Yee was consensual, and yet asserts that based on the length of his
detention, the varying number of officers present, and the type of questions he was
asked, custody occurred from the outset and continued through Officer Sanderson
and Sergeant Freeman’s questioning. We disagree.
      “Whether a person is in custody is an objective test: the pertinent inquiry is
whether there was a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest. [Citation.] The totality of the
circumstances is considered and includes ‘(1) whether the suspect has been
formally arrested; (2) absent formal arrest, the length of the detention; (3) the
location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer,
including the nature of the questioning.’ [Citation.] Additional factors are whether
the officer informed the person he or she was considered a witness or suspect,
whether there were restrictions on the suspect’s freedom of movement, whether the
police were aggressive, confrontational, and/or accusatory, and whether the police
used interrogation techniques to pressure the suspect. [Citation.]” (People v.
Davidson (2013) 221 Cal.App.4th 966, 971-972.)
      Here, the totality of the circumstances defeats the notion that defendant was
in custody at any relevant time after he approached Officer Yee. Defendant was
not formally arrested until after he completed the FST’s. The record is not entirely
clear as to the precise duration of defendant’s interaction with the police. Officer
Yee testified on the one hand that defendant approached him at 12:17 a.m., and
that Officer Sanderson arrived around 12:45, a period of 28 minutes. According to
Officer Sanderson, he spent about 20 to 25 minutes with defendant before he was
arrested, thus suggesting that the entire interaction between defendant and the
police lasted a total of 53 minutes. On the other hand, Officer Yee also estimated

                                          13
that he spent 45 minutes with defendant before Officer Sanderson arrived, which
(with the 20 to 25 minutes Officer Sanderson estimated) would suggest that the
entire interaction lasted perhaps as long as 70 minutes. However, we note that the
last portion of Officer Sanderson’s interaction with defendant consisted of
defendant performing the FST’s, during which he was not interrogated and made
no incriminating statements. Thus, the FST period of the interaction is irrelevant
to whether defendant was in custody when he was questioned.
      Regardless, although the detention was not brief, the record supplies ample
explanation for the delay. Defendant’s interaction with the police began not with
him being detained, but with him voluntarily approaching Officer Yee. He
appeared injured, and volunteered that he had been involved in an accident and
been robbed. Officer Yee questioned defendant about both the robbery and the
accident, being more concerned about, and thus asking more questions about,
defendant’s report of an armed robbery than the accident. An officer photographed
defendant’s injuries, and paramedics arrived and examined him. Officer Lee
summoned Officer Sanderson to perform a DUI investigation because Officer
Sanderson specializes in such investigations. It took Officer Sanderson
approximately 15 minutes to arrive. Once he arrived, he and Officer Freeman
conducted a DUI investigation and questioned defendant about the robbery. In
short, under the circumstances, there was no unnecessary delay in completing the
investigation of defendant’s purported robbery and his driving under the influence.
Further, there was no suggestion that defendant believed the questioning would
“continue until he provid[ed] his interrogators the answers they [sought].”
(Berkemer v. McCarty (1984) 468 U.S. 420, 438 (Berkemer).)
      The location of the questioning was not coercive. It was a public street
corner. Defendant was not told where to stand; he chose to lean against a light

                                         14
standard. He was never asked to move until Officer Sanderson had him perform
the FST’s. (Berkemer, supra, 468 U.S. at p. 438 [“exposure to public view [of a
traffic detention] both reduces the ability of an unscrupulous policeman to use
illegitimate means to elicit self-incriminating statements and diminishes the
motorist’s fear that, if he does not cooperate, he will be subjected to abuse”].)
      The ratio of officers to defendant varied, with perhaps as many as five
officers present at one time or another, and at times two or three officers stood in a
semicircle at a distance, facing and to the sides of defendant. But the demeanor of
the officers was informal, and the questioning was never accusatory. Officer Yee
told defendant that he was not under arrest, and that he “want[ed] to find out who
has the gun. . . . I ain’t trippin’ about no [traffic collision].” Officer Sanderson
and Sergeant were likewise not aggressive or intimidating in their questioning. At
no time was he told that he was not free to leave. Other than a pat down for
weapons during his interaction with Officer Yee, none of the officers touched
defendant until the FST’s were administered by Officer Sanderson. Defendant
appeared calm throughout the interaction.
      Examining these factors in totality, we conclude that defendant was not in
custody for Miranda purposes. In other words, he was not “subjected to restraints
comparable to those associated with a formal arrest.” (Berkemer, supra, 468 U.S.
at p. 441.) In reaching this conclusion, we find the decision in People v. Forster
(1994) 29 Cal.App.4th 1746, instructive. There, the defendant was stopped at 9:25
p.m. by a customs officer while reentering the United States from Mexico at the
San Ysidro Point of Entry. As the defendant responded to routine questions, the
customs officer formed the opinion that he was under the influence. The officer
asked the defendant to exit his car, and then accompanied him to the customs
security office, where the officer patted the defendant down for weapons and told

                                          15
him to sit on a bench. The customs officer then contacted the California Highway
Patrol to investigate whether the defendant was driving under the influence. (Id. at
p. 1750.) A CHP officer arrived at 10:20 p.m., spoke to the customs officer, and
then contacted the defendant at 10:30 p.m. (Id. at pp. 1750-1751.) The CHP
officer asked the defendant to approach a counter, and asked questions concerning
an injury to the defendant’s ear (defendant said he had been in a fight), and
questions concerning the defendant’s drinking and activities throughout the prior
day (the defendant said that he had drunk four beers beginning at 8:00 that
morning). The officer had the defendant perform several field sobriety tests, after
which he was arrested. (Id. at p. 1751.)
      The Court of Appeal upheld the trial court’s determination that the defendant
was not in custody for Miranda purposes when questioned by the CHP officer:
“Forster [the defendant] had not been arrested. . . . [T]he detention was a relatively
long one, a little more than an hour. However, there is a reasonable explanation
for that delay, namely, it took that long for the CHP officer to arrive at the San
Ysidro Port of Entry and it was necessary to wait for the CHP officer’s arrival
because customs officers do not investigate driving under the influence cases. . . .
Forster was detained in a public area of the customs office; he was neither
restrained nor handcuffed in any fashion. Forster sat quietly on a bench and was
not addressed by any officer during this interval. . . . [T]he record does not
indicate how many customs officials were present in the customs office or if there
were other people being detained at the same time as Forster. Finally, . . . we do
not discern any overbearing demeanor from either [the customs or CHP officer];
nor does their questioning appear to be compulsive in any sense. Thus, we are left
with one factor that supports Forster’s position, namely the hour-plus detention.
However, in deciding . . . the custody issue for purposes of Miranda, it is the

                                           16
totality of circumstances that is relevant; ‘no one factor is dispositive.’ [Citation.]
And this one factor -- length of detention -- is rationally explainable here.
Therefore, given the absence of objective indicia of arrest and considering the
totality of the circumstances, we conclude that while Forster was most definitely
detained in the customs office, he was not in custody for Miranda purposes.”
(People v. Forster, supra, 29 Cal.App.4th at pp. 1753-1754, fn. omitted.)
          Similarly in the instant case, the length of defendant’s interaction with the
police is rationally explained by the circumstances involved. While the record here
shows that several officers were present off and on during questioning, the officers
did not act coercively at any time, and never physically restrained defendant (other
than when he was patted down). Based on these and the other factors we have
identified, we conclude on the totality of the circumstances, despite the length of
defendant’s interaction with the police and the number of officers present,
defendant was not in custody for purposes of Miranda. Therefore, the trial court
did not err in denying defendant’s motion to exclude his statements.


   III.      Instructions
          The trial court instructed the jury on murder and gross vehicular
manslaughter while intoxicated pursuant to the pattern instructions, CALCRIM
Nos. 520 (murder) and 590 (manslaughter). Defendant contends that the trial court
erred in giving these instructions, because they do not explain that the implied
malice required for second degree murder includes a subjective awareness of risk,
whereas the gross negligence required for vehicular manslaughter does not.
          Defendant concedes that CALCRIM Nos. 520 and 590 “are not incorrect
statements of the law,” but asserts that they should have been supplemented by an
additional instruction explaining the difference between the subjective and

                                             17
objective standards used to determine implied malice on the one hand and gross
negligence on the other. However, in the trial court he failed to request such an
instruction, and therefore he has forfeited the contention. (People v. Jones (2014)
223 Cal.App.4th 995, 1000-1001 [holding absent a request, trial court had no duty
to give a clarifying instruction that an objective standard of provocation applies to
reduce murder to voluntary manslaughter, but not to reduce first to second degree
murder].)
      In any event, the claim is meritless. Using CALCRIM No. 520, the trial
court instructed the jury in relevant part that to prove murder, the People must
prove that “[w]hen the defendant acted, he had a state of mind called malice
aforethought.” The court instructed that “[t]he defendant acted with implied
malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and
probable consequences of the act were dangerous to human life; [¶] 3. At the time
he acted, he knew his act was dangerous to human life; AND [¶] 4. He
deliberately acted with conscious disregard for human life.” (Italics added.)
      Using CALCRIM No. 590, the court instructed in relevant part that to find
defendant guilty of gross vehicular manslaughter while intoxicated, the People had
to prove that the defendant committed an infraction while driving, and that he did
so “with gross negligence.” The court defined gross negligence as follows:
“Gross negligence involves more than ordinary carelessness, inattention, or
mistake in judgment. A person acts with gross negligence when: [¶] 1. He or she
acts in a reckless way that creates a high risk of death or great bodily injury; AND
[¶] 2. A reasonable person would have known that acting in this way would create
such a risk. [¶] In other words, a person acts with gross negligence when the way
he or she acts is so different from the way an ordinarily careful person would act in



                                          18
the same situation that his or her act amounts to disregard for human life or
indifference to the consequences of that act.” (Italics added.)
      We do not see how these instructions reasonably give rise to any confusion.
For murder, the prosecution had to prove that defendant had a particular “state of
mind,” which included knowledge that his act was dangerous to human life and
that he deliberately acted with conscious disregard for human life. For gross
vehicular manslaughter, the prosecution had to prove that defendant acted in a
manner that recklessly created a high risk of death or great bodily injury, and “that
a reasonable person would have known that acting in this way would create such a
risk.” The subjective standard applicable for implied malice (the “state of mind”
requiring knowledge of the risk to human life) was clear, as was the objective
standard required for gross vehicular manslaughter (reckless conduct that a
reasonable person would have known created a risk to human life).
      Defendant contends that a clarifying instruction was needed to correct
misstatements by the prosecutor in her opening argument equating implied malice
to gross negligence. But the two comments to which he refers, viewed in context,
do not support the notion that the prosecutor equated the subjective standard of
implied malice to the objective standard of gross negligence. The prosecutor
initially described defendant’s conduct as not mere “gross negligence, he . . .
exercised general disregard for the safety of others, which you’ll hear about in a
minute. It’s called implied malice. That wasn’t ordinary negligence. It was
extreme negligence.” The prosecutor then discussed each of the elements of
implied malice. In discussing whether defendant intentionally committed an act,
the prosecutor began: “[T]he act that he committed started before he even got to
the party. The implied malice and the conscious disregard he showed for the safety
of others happened before he left his home that day [because he knew that he was

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going to drive to the party, drink, and then drive away]. . . . He made a conscious
decision to ignore the dangers [and] his responsibility as a driver.” In arguing that
“[a]t the time the defendant acted he knew his act was dangerous to human lives,”
the prosecutor argued that defendant’s knowledge that his act was dangerous was
proven by defendant’s prior conviction of DUI and his completion of the HAM
program, his conscious choice to drive while under the influence, his flight from
the scene of the accident, and his false story of being robbed. We find nothing in
the relevant comments of the prosecutor that might have misled the jury into
believing that implied malice, unlike gross negligence, did not require a subjective
awareness of the risk to human life.


   IV.    Photographs
      Defendant contends that the trial court erred in admitting two autopsy
photographs of the murder victims over his objection under Evidence Code section
352. We disagree.
      Before opening statements, defense counsel objected under Evidence Code
section 352 to the prosecutor using any autopsy photographs of the murder victims,
Samuel Dickens and Sylvester Payne. The prosecutor responded that she intended
to use one photograph of each victim in examining Ralph Payne. Defense counsel
argued that the victims could be identified by means other than use of the
photographs. The trial court examined the two photos in issue, and described them
for the record: “These photographs are essentially from the chest up. . . . It looks
like they have . . . a breathing tube . . . in their mouths. They just look like they’re
asleep. I don’t believe that the prejudicial effect . . . outweighs the probative value.
Your motion is denied.” Thereafter, in examining Ralph Payne the prosecutor



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showed him the photographs. He testified that they depicted Dickens and
Sylvester, and that they were alive before the photographs were taken.
        The trial court did not abuse its discretion. “‘“The admission of photographs
of a victim lies within the broad discretion of the trial court when a claim is made
that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise
of that discretion will not be disturbed on appeal unless the probative value of the
photographs clearly is outweighed by their prejudicial effect. [Citations.]”’”
(People v. Montes (2014) 58 Cal.4th 809, 862.) On appeal, defendant inaccurately
describes the photographs as “gruesome.” We have examined the photographs.
As the trial court rightly described them, they depict only the shoulders and faces
of the victims, with their eyes closed. They show no obviously fatal injuries. Each
victim has white tape securing a tube in his mouth. Given that they depict the
deceased victims, they are not pleasant, but they are far from gruesome and
inflammatory. The prosecution used the photographs for the limited purpose of
identifying the victims as being alive before the photographs were taken. We
conclude that the trial court correctly determined that the probative value of the
photographs was not substantially outweighed by their prejudicial effect.


   V.      Witness Lonnie Smith
        Lonnie Smith, who lived in the area of the accident, testified that there was
shrubbery on the north side of 141st Street approaching Normandie that had been
cut back since the time of the accident. Defense counsel asked: “At the time of
the accident, . . . if I had been driving west down on 141st Street . . . towards
Normandie, the shrubbery that was trimmed back, that would have partially
obscured the stop sign as I approached the intersection; correct?” The trial court



                                           21
sustained the prosecutor’s objection on the ground of speculation. Defense counsel
did not try to rephrase the question and did not return to the topic.
      On appeal, defendant assigns this ruling as error. It is not. In posing this
abbreviated hypothetical question, defense counsel left too many variables unstated
for any answer to be relevant regarding the circumstances of the instant collision,
such as the supposed speed he was traveling, the distance at which the stop sign
purportedly became “partially obscured,” and what he meant by “partially
obscured” (would the stop sign be unrecognizable as such? Was he referring only
to the posted sign or also the white lettering in the street?) Any response to the
question would have had no tendency in reason to prove or disprove a material fact
in the case, and was therefore irrelevant. (Evid. Code, § 210.)
      We note, further, that even if the ruling was erroneous (it was not),
defendant cannot show prejudice on this record. First, we cannot know what the
response might have been. Second, defendant told Officer Sanderson that before
the accident he turned left and “[t]here[’s] a stop sign right there.” Third, Officer
Matthew Hassoldt, the prosecution’s accident reconstruction expert, examined the
accident scene and testified that nothing obscured the stop sign in defendant’s
direction at Normandie and 141st Street (though there was a large tree on the right
of the sign). Under these circumstances, any error was clearly harmless. (People
v. Watson (1956) 46 Cal.2d 818, 836.)




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                      DISPOSTITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 WILLHITE, Acting P.J.




We concur:




MANELLA, J.




COLLINS, J.




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