Filed 9/14/15 P. v. Farley CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049516

         v.                                                            (Super. Ct. No. 11HF1409)

AUSTIN JEFFREY FARLEY,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
James R. Brandlin, Judge. (Judge of the L.A. Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal.Const.) Affirmed as modified.
                   David P. Lampkin, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff
and Respondent.
                                             *               *               *
                                    INTRODUCTION
              While inebriated, Austin Jeffrey Farley drove a pickup truck into another
vehicle, killing one of its passengers and injuring four others. A jury convicted Farley, as
charged, of one count (count 1) of second degree murder (Pen. Code, § 187, subd. (a)),
one count (count 2) of driving under the influence causing bodily injury (Veh. Code,
§ 23153, subd. (a)), and one count (count 3) of driving with a blood-alcohol level of
0.08 percent or more causing bodily injury (id., § 23153, subd. (b)). As to counts 2 and
3, the jury found to be true two enhancement allegations under Penal Code
section 12022.7 of infliction of great bodily injury.
              The trial court sentenced Farley to a prison term of 21 years to life,
consisting of the upper term of three years on count 2, a consecutive term of three years
for an enhancement on count 2, and a consecutive, indeterminate term of 15 years to life
on count 1. Sentence on count 3 and on the enhancements to that count was imposed and
execution of sentence was stayed under Penal Code section 654.
              With respect to each of Farley’s contentions, we conclude:
              1. The evidence of implied malice was sufficient to uphold the conviction
for second degree murder.
              2. The trial court did not err in admitting evidence of the facts regarding a
prior drunk driving conviction. Even if the trial court erred by allowing evidence of an
incident of uncharged reckless driving, the jury instructions rendered any error harmless.
              3. The trial court did not err by allowing testimony about statements made
at a Mothers Against Drunk Driving (MADD) victim impact panel attended by Farley.
              4. Farley’s trial counsel was not ineffective by failing to object and move
to strike cross-examination testimony of Farley’s expert psychologist, and any error by
the trial court in overruling certain other objections was harmless.
              5. Farley’s trial counsel was not ineffective by conceding the knowledge
element of implied malice in closing argument.

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                6. There was no cumulative error.
                7. Sentence on the enhancement that was incorrectly imposed against
count 1 must be vacated.
                8. Credits were stated correctly in the abstracts of judgment
                We therefore vacate the sentence on the enhancement on count 1 and in all
other respects affirm.


                                            FACTS
                                               I.
                                       The Fatal Collision
                At about 1:15 a.m. on May 29, 2011, M.G. was driving his 2008 Mercedes
Benz northbound on Culver Drive in the City of Irvine. He had picked up his 14-year-old
daughter, P.G., and her friends, K.M., A.R., and A.S., at a friend’s house and was taking
them home. As M.G. approached the intersection with Irvine Boulevard, he noticed, in a
southbound lane of Culver Drive, a vehicle that seemed to be slowly turning left against a
red light into the intersection. The light was green for M.G., and he flashed his high
beams once or twice “to get the driver’s attention” before proceeding into the
intersection.
                The vehicle, a 2003 Dodge pickup truck driven by Farley, did not stop, but
accelerated. Farley drove the truck through a red light, made a left turn into the
intersection, and struck M.G.’s car on the driver’s side between the driver’s door and the
passenger door. The impact caused M.G.’s car to spin 180 degrees counterclockwise,
travel northward, and strike a light pole at the northeast corner of the intersection.
                A.S., who was seated in the driver’s side rear passenger seat, was killed.
The cause of death was blunt cranial cerebral trauma. K.M., who was seated in the
middle of the rear passenger seat, suffered broken ribs, a punctured lung, an inflamed
spleen, and lacerations to her face.

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              Neither Farley nor his passenger, J.R., was injured. Immediately after the
crash, J.R. heard Farley say, “I’m fucked.” Farley tried to drive away, but his truck was
badly damaged and stalled in the middle of the road, 30 to 40 feet from the crash site.
              Timothy Song was driving home and was stopped at a red light on Irvine
Boulevard when the collision occurred. When, a few seconds later, Song had a green
light, he drove to M.G.’s car, stopped, and turned on his car’s hazard lights. Song got out
of his car, ran to the Mercedes, and asked if everyone was all right. Someone from inside
the Mercedes asked Song to get the license number of the other vehicle. Song walked
over to Farley’s pickup truck. He noticed the truck’s rear wheel was still spinning.
When Song asked if Farley and J.R. were okay, J.R. asked Song, “is she dead? . . . [T]he
girl, is she okay? Is she alive?”
              Irvine Police Officer Sean Metevia arrived at the scene at 1:19 a.m. When
Metevia approached Farley’s truck, the engine was still running. Metevia noticed that
Farley’s eyes were watery and bloodshot. Metevia heard J.R. say to Farley, “you didn’t
see the red” and Farley respond, “light was green.”
              Farley acknowledged that he had been drinking. He told the police officers
he drank two or three beers during the course of the evening and did not feel the effects
of the alcohol. A test of a blood sample drawn from Farley at 2:59 a.m. showed a
blood-alcohol level of 0.20 percent. The forensic scientist who conducted the test
estimated that Farley’s blood-alcohol level at 1:15 a.m. had been 0.22 percent to
0.23 percent. The scientist believed that a man of Farley’s height (six feet two inches)
and weight (220 pounds) would have to drink 15 to 16 “standard drinks” to reach a
0.23 percent blood-alcohol level. Surveillance video showed that Farley and J.R. had
been at a bar from 10:14 p.m. to 12:34 a.m.
              Farley’s blood sample also had a therapeutic level of clonazepam
(Klonopin), a form of benzodiazepine that is prescribed for stress or as an antiepileptic.
Klonopin is a central nervous system depressant and can intensify the effects of alcohol.

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Farley took Klonopin to treat obsessive-compulsive disorder (OCD) and severe anxiety,
and earlier on the day of the collision, he had taken two pills instead of the prescribed
dosage of one pill.
                                             II.
                                 Farley’s Police Interview
              Farley was taken into custody and interviewed by Irvine Police Officer
Allyson Maddy at 6:07 a.m. on May 29, 2011. An officer named Meyer also was
present. When Farley entered the interview room, Maddy noticed he emitted a strong
odor of alcohol. The interview started once Farley was read his rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436.
              During the interview, Farley said that on May 28, 2011, he had been at his
friend Zach’s house and, from there, took a taxi to the “Dubliner” bar to celebrate his
26th birthday. Farley took a taxi to the Dubliner so he would not have to drink and drive.
Farley said he was at the Dubliner for about 30 minutes and drank “a couple of beers.”
From the Dubliner, Farley took a taxi back to Zach’s house, where he had left his truck.
Farley and J.R. had started an argument at the Dubliner, and they continued to argue on
the taxi ride and for an hour outside of Zach’s house.
              Farley said that he and J.R. decided to drive to a Del Taco restaurant in the
area of Yale Street and Irvine Boulevard in the City of Irvine. They got into Farley’s
truck, and he drove to the Del Taco restaurant. He felt safe to drive based on the amount
of time that had elapsed since he had a drink and on the fact he only drank three beers
that evening. Farley drove southbound on Culver Drive, and, as he approached the
intersection with Irvine Boulevard, he saw the traffic light was red for his direction of
travel. He slowed the truck and, when he was about 100 feet from the signal, he saw the
traffic lights for both the left turn lane and through traffic lanes had turned green. Farley
entered the number one southbound left turn lane and turned left into the intersection with
a green arrow signal. He said he was travelling at about 30 miles per hour when he

                                              5
entered the intersection. When he had travelled four or five feet into the intersection, he
saw a flash of light and “felt the impact” seconds later. Farley told Maddy, “some idiot
fucker just booked it right in front of my car and I just smashed right into the side of
him.” Farley said the car was “blazing through” the intersection as though it was trying
to beat the signal. After the collision, Farley was concerned about the people in the other
car but was irritated because the car had pulled in front of him.
              Farley said that he and J.R. had been arguing in the moments leading to the
collision and J.R. was making gestures and screaming in Farley’s face. J.R. did not touch
him or any control mechanism on the truck, and, according to Farley, the collision would
have occurred regardless of whether he and J.R. had been arguing. When asked if J.R.
had been “getting physical,” Farley said, “no, not really.”
              Farley explained that he had been prescribed Klonopin for OCD and
anxiety. The prescribed dosage of Klonopin was one pill three times a day, but that day
he had taken two pills instead of one. He described his OCD as “insanely severe” and his
life was unmanageable because of it. The collision did not result from his OCD, and,
while OCD caused Farley to want to drink, he did not drink the prior night for that
reason. Due to his OCD, Farley suffers from paranoia and notices small details—“every
little thing”—such as whether a particular light is burned out. Farley told Maddy and
Meyer that he could not have turned left against a red light because “his OCD demons in
his head would not allow it.”
              Maddy asked Farley about a prior collision when he was 19 years old.
Farley said that while driving on Jamboree Road in Irvine, the person in the car behind
him “flipped him off.” Farley looked back at that person, and, on looking forward again,
saw the car in front of him slam on the brakes. Farley drove into rear of that car.
              Maddy also asked Farley about his arrest in 2009 for driving under the
influence. Farley said he had been “insanely intoxicated” when that occurred. He served
jail time, spent four months in rehabilitation, and was still on probation for that offense.

                                              6
He had been ordered to attend a MADD panel, which he described as “just a couple of
people that went up there and cried they lost somebody due to a D.U.I. or something.”
Farley also had been ordered to attend meetings of both Alcoholics Anonymous and
Narcotics Anonymous. He thought some of the meetings were “kind of bullshit” because
they did not relate to him.
              When Maddy asked Farley if he knew that driving under the influence
could lead to a fatality, he said that he did. Maddy asked him whether, upon his prior
driving under the influence (DUI) conviction, he had been advised that if he were
involved in another collision and was found to be driving while intoxicated and found at
fault, he could be charged with murder. Farley could not recall but said the matter might
have come up at the MADD panel.
                                            III.

                Evidence of Knowledge That Driving While Intoxicated
                             Is Dangerous to Human Life
              On May 4, 2004, Farley received a citation for driving a vehicle as a minor
with a blood-alcohol level of 0.05 percent or more. As a consequence of the citation,
Farley attended a daylong alcohol awareness program. Gay Sandoval, who worked for a
company that provided the alcohol awareness program at Orange Coast College, testified
the purpose of that program was to educate the participants about the dangers of drinking
or using drugs and driving. An attorney and a police officer spoke and a film was shown.
              In 2009, Farley was charged with, and pleaded guilty to, misdemeanor
DUI. On the plea form, as the factual basis for his plea, Farley wrote that on
February 15, 2009, he “did willfully and unlawfully drive a vehicle while under the
influence of alcohol with a [blood-alcohol level] of .08% or greater, to wit: .18%.”
Farley initialed item No. 8 on the plea form, which gave this warning: “I have been
advised that being under the influence of alcohol or drugs, or both, impairs your ability to
safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to


                                             7
drive while under the influence of alcohol or drugs, or both. If I continue to drive while
under the influence of alcohol or drugs, or both, and as a result of that driving someone is
killed, I can be charged with murder.”
              Farley attended a MADD victim impact panel on July 2, 2009. Those in
attendance at the panel were given an advisement, based on People v. Watson (1981) 30
Cal.3d 290, 296 (Watson advisement), of the dangers of drinking and driving. The
Watson advisement warned those in attendance they could be charged with murder if they
killed someone while driving under the influence of alcohol. One panel member, Sharry
Graham, explained she could be subpoenaed to testify in court that she had provided the
Watson advisement. Graham did indeed so testify at trial.
              As a consequence of his 2009 DUI conviction, Farley was ordered to
participate in a six-month first offender drinking and driving program, which included
15 two-hour-long group sessions, six two-hour-long alcohol education lectures, and 12
individual sessions. He completed the program in 2009. In one session on alcohol
education, the participants were taught the rate at which alcohol metabolizes so that they
could determine how long to wait after drinking before driving an automobile. The
participants were taught that, generally speaking, one drink is metabolized in an hour.
                                            IV.
                            Expert Psychological Testimony
              Psychologist Veronica Thomas, Ph.D., was retained to conduct a
psychological assessment of Farley and testified as a defense expert witness at trial.
Dr. Thomas reviewed police reports and a letter from Farley’s psychiatrist and spent 14
to 20 hours interviewing Farley and administering tests of cognitive function, personality,
and memory.
              Dr. Thomas noticed that Farley had a difficult time staying focused,
“engaged in constant rituals and compulsions,” and was “extremely anxious.” She found
that he had several psychiatric impairments, the most notable of which was OCD, which

                                             8
caused him to engage in ritualistic, repetitive behavior. As a child, Farley had been
diagnosed with attention deficit disorder and prescribed Ritalin. Although he suffered no
mental, sexual, or physical abuse at home, Farley had told Dr. Thomas his primary duty
was to keep the peace between a mother who was depressed and had a drinking problem
and a father who had issues with “emotional regulation” and anger. After completing
high school, Farley started drinking alcohol and smoking marijuana on a daily basis for
recreational purposes, to calm himself down, and to help to lessen his OCD symptoms.
              Farley told Dr. Thomas he had tried to commit suicide several years earlier
by taking an entire bottle of Klonopin because “he couldn’t live like this anymore.” He
had difficulty finding and keeping a job because of his need to follow rituals.
              Dr. Thomas administered an intelligence test which showed that Farley had
normal intelligence. She also administered a personality test (the “Minnesota Multiple
Facet Personal Inventory Test”), which required Farley to answer a number of questions.
He became so overwhelmed and scared by the test that he took a long time to complete it.
He was anxious and had difficulty paying attention.
              Dr. Thomas administered a verbal learning test, which measured memory
function, and Farley “did fine” on this test. Dr. Thomas administered a
neuropsychological test that measured judgment and the ability to make difficult choices.
The test showed that Farley “has a need to respond to things in a certain way and has a
hard time being flexible.” Other tests showed that Farley did not suffer from organic
brain injury and had the ability and motivation to give straightforward and honest
answers to questions. The defensive way in which Farley responded to questions on a
substance abuse test suggested that he has a substance dependence disorder.
              Dr. Thomas diagnosed Farley as having bipolar disorder (severe mood
disorder), alcohol and cannabis dependence, abuse of antianxiety medication, OCD, and
personality disorder. While the OCD was “the most observable and prominent of the



                                             9
disorders,” the bipolar disorder is “associated with depression and impulsivity, frequent[]
aggressiveness and difficulty getting along with other people.”


                                      DISCUSSION
                                             I.

                 The Evidence of Implied Malice Was Sufficient for a
                        Second Degree Murder Conviction.
              Farley was convicted of second degree murder under a theory of implied
malice. He contends the evidence of implied malice was insufficient to support the
conviction.
              “‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] . . .’” (People v. D’Arcy
(2010) 48 Cal.4th 257, 293.)
              A conviction of second degree murder requires a finding of malice
aforethought. (Pen. Code, §§ 187, subd. (a), 189.) Malice is implied when (1) the killing
results from an intentional act; (2) the natural consequence of the act was dangerous to
human life; (3) the defendant knew the act was dangerous to human life; and (4) the
defendant deliberately committed the act with conscious disregard for life. (People v.
Taylor (2004) 32 Cal.4th 863, 867.) Implied malice has a physical/objective component
and a mental/subjective component. (People v. Knoller (2007) 41 Cal.4th 139, 157;


                                             10
People v. Taylor, supra, at p. 867.) The physical/objective component is the commission
of an act, the natural and probable consequence of which was dangerous to human life.
The mental/subjective component is the defendant’s knowledge the act was dangerous to
human life and the defendant’s deliberate commission of the act with conscious disregard
for life. (People v. Knoller, supra, at p. 157; People v. Taylor, supra, at p. 867.)
              Driving while intoxicated is an act which may support a conviction for
second degree murder under an implied malice theory: “‘One who wilfully consumes
alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a
motor vehicle, thereby combining sharply impaired physical and mental faculties with a
vehicle capable of great force and speed, reasonably may be held to exhibit a conscious
disregard of the safety of others.’” (People v. Watson, supra, 30 Cal.3d. at pp. 300-301.)
Following People v. Watson, numerous cases have upheld second degree murder
convictions based on drunk driving. (E.g., People v. Batchelor (2014) 229 Cal.App.4th
1102, 1113-1115; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092; People v.
Ferguson (2011) 194 Cal.App.4th 1070, 1080; People v. Autry (1995) 37 Cal.App.4th
351, 358-359; People v. Talamantes (1992) 11 Cal.App.4th 968, 973.)
              “In summary, courts have identified factors relevant for upholding a murder
conviction based on drunk driving: ‘(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. Batchelor, supra, 229
Cal.App.4th at p. 1114.) Not all of these factors must be present to uphold a second
degree murder conviction. (People v. Autry, supra, 37 Cal.App.4th at p. 358; People v.
Talamantes, supra, 11 Cal.App.4th at p. 973.)
              The evidence established that Farley had a blood-alcohol level of 0.22 to
0.23 percent and had Klonopin in his system when he drove his truck into M.G.’s car.
Surveillance video showed that Farley arrived at the Dubliner bar at 10:14 p.m. and left at
12:34 a.m. Within 45 minutes after leaving the Dubliner, he decided to drive his truck to

                                             11
a Del Taco restaurant. Farley knew of the dangers of driving while intoxicated. He had
attended alcohol awareness class in 2004. When he pleaded guilty to misdemeanor DUI
in 2009, he initialed the warning on the plea form that “it is extremely dangerous to
human life to drive while under the influence of alcohol or drugs, or both. If I continue to
drive while under the influence of alcohol or drugs, or both, and as a result of that driving
someone is killed, I can be charged with murder.” He attended a MADD victim impact
panel in July 2009, at which he was given a Watson advisement, and he participated in a
six-month drinking and driving program, at which he learned about the rate at which
alcohol metabolizes. A defendant’s participation in mandatory educational programs is
relevant to the issue of knowledge and awareness of the life-threatening risks of driving
under the influence. (People v. David (1991) 230 Cal.App.3d 1109, 1115.)
              Although there was no evidence that Farley had engaged in reckless or
highly dangerous driving before the collision, the evidence supported a finding that he
caused the collision by making the highly dangerous maneuver of making a left turn
against a red light and accelerating into an intersection.
              Farley argues there was no evidence of a predrinking intent to drive and he
had taken a taxi to the Dubliner precisely so that he would not have to drive while
intoxicated. People v. Watson, supra, 30 Cal.3d 2d 290, and its progeny do not require
that all factors, including a predrinking intent to drive, be present to sustain a second
degree murder conviction. (People v. Autry, supra, 37 Cal.App.4th at p. 358; People v.
Olivas (1985) 172 Cal.App.3d 984, 988-989.) “The criminal act underlying vehicular
murder is not use of intoxicating substances in anticipation of driving, but is driving
under the influence with conscious disregard for life. Nothing in Watson states that the
former is necessary to a finding of the latter.” (People v. Olivas, supra, at pp. 988-989.)
              A case-by-case approach is required. (People v. Olivas, supra, 172
Cal.App.3d at p. 989.) In this case, at the moment Farley decided to drive his truck to the
Del Taco restaurant, he knew that doing so was dangerous to human life. He had been

                                              12
drinking at a bar for several hours; he was heavily intoxicated and had taken Klonopin
that day. He had a prior DUI conviction, knew of the dangers of drinking and driving,
and had been given a warning about the consequences of killing someone while driving
intoxicated. Farley made a left turn against a red signal and drove into M.G.’s car. As
stated in People v. Talamantes, supra, 11 Cal.App.4th at page 973, “even if, when
[Farley] was drinking, he did not know he would have to drive—still the evidence of
implied malice is sufficient to sustain the judgment.”
                                            II.

                    Any Error in Allowing Evidence of Prior Acts
                     of Uncharged Misconduct Was Harmless.
A. Background
              In 2005, Farley was involved in a “road rage” incident and hit-and-run
vehicle collision that did not involve intoxication. He was not charged with an offense.
In 2009, Farley pleaded guilty to misdemeanor DUI.
              Over Farley’s objection, the trial court ruled that evidence regarding the
2005 road rage incident and of the facts behind Farley’s 2009 DUI conviction was
admissible under Evidence Code section 1101, subdivision (b) (section 1101(b)). The
court concluded that evidence of Farley’s past driving behavior was relevant to his
“subjective actual awareness” of the fact that driving a vehicle in a reckless manner can
cause injury or death. The court stated, “[w]hat is relevant is his state of mind when
[Farley] operates a motor vehicle and whether or not he shows the type of caution that we
would expect of a reasonably prudent person and his awareness of those risks.”
              Farley contends the trial court erred by permitting the prosecution to
present evidence of the 2005 road rage incident and of the facts behind the 2009 DUI
(other than the fact of the DUI conviction itself) because that evidence was inadmissible
under section 1101(b) and Evidence Code section 352. The trial court’s decision to admit
evidence of prior uncharged acts of reckless and drunk driving under section 1101(b) is


                                            13
reviewed under the abuse of discretion standard. (People v. Kipp (1998) 18 Cal.4th 349,
369; People v. Ortiz (2003) 109 Cal.App.4th 104, 117 (Ortiz).) We conclude the trial
court did not err by allowing evidence of the facts behind the 2009 DUI. Although the
trial court might have erred by allowing evidence of the 2005 road rage incident, any
error was harmless.
B. The Challenged Evidence
       1. The 2005 Road Rage Incident
               Prosecution witness Rocio Bustamante testified that sometime before
8:00 a.m. on February 10, 2005, she was driving her Honda Civic to work. Traffic was
backed up. While she was on Jamboree Road near the Interstate 5 offramp, another
vehicle struck her car from behind and pushed it into an intersection. Bustamante’s car
was totaled.
               Prosecution witness Barbara Ramseyer testified that she was in her car near
Jamboree Road and Interstate 5 on the morning of February 10, 2005. Looking in her
rearview mirror, she noticed a GMC Yukon SUV driven by Farley, who appeared to be
“anxious.” Farley pulled up next to Ramseyer. He had his arm out the window and was
pounding the outside of the car door. Ramseyer described him as “really angry,” and she
thought to herself, “I wish the light would turn green so I can get away.” The traffic light
turned green, but there were too many cars ahead at the intersection for anybody to move.
Ramseyer testified: “I could hear him and then he started to try to get in front of me,
although, there wasn’t any room and so I thought, well, what do I do? So, I honked my
horn thinking, okay, please just don’t try to get in front because there is no room to get in
front, you are going to hit me. [¶] He wasn’t changing his mind to sit still, so he started
moving over in front of me, so I pulled over to the median and stopped and then he came
over to where I was originally in the lane, and then he was still angry and still mad. You
could see it in his face. . . . [H]e just was getting angrier, and then he just floored it or
accelerated really quickly, and he made a quick turn to the right and then he hit the

                                               14
person in front of me very, very hard and she went off into the intersection and then he
took off going towards Jamboree and then kind of at the last minute changed and sped, I
mean, really fast down to Edinger exit, so I stopped and got out to help the lady [who]
was driving. [¶] . . . [¶] . . . When I honked my horn and he was trying to get in front, he
raised his middle finger at me.”
              Linda Villelli, a City of Irvine civilian traffic investigator, testified she
investigated the collision, which was considered to be a “hit and run.” When Villelli
arrived at the scene, the suspect—Farley—was not there. While Villelli was taking
witness statements, Farley returned and told Villelli he had been trying to change lanes
for quite some time but another vehicle would not let him over. When he eventually
changed lanes in front of that vehicle, the driver honked at him. Farley “flipped . . . off”
the driver and drove into the vehicle ahead of him. After the collision, Farley panicked,
drove to work, and called his parents. His father picked him up and brought him back to
the accident scene. No evidence was presented that Farley was charged with an offense
arising out of the collision.
       2. The 2009 DUI
              Irvine Police Officer Shaheen Jahangard testified that on February 15, 2009
at about 6:00 a.m., he was dispatched in response to a 911 call from Cynthia Farley,
Farley’s mother. Cynthia Farley reported that she was in her car with her husband, and
they were being chased by Farley, who was driving a Dodge Dakota truck. Farley was
drunk and driving erratically. In the 911 call, Cynthia Farley said they were running red
lights and speeding in order to get to the Irvine Police Department for help.
              Jahangard arrived at a parking lot at the Irvine Civic Center, where he
found Cynthia Farley and her husband. Their car had collision damage to the front left
bumper. Jahangard also found Farley at the parking lot and arrested him for DUI. When
discussing this incident with Maddy, Farley said he had been “insanely intoxicated.”



                                              15
C. Evidence Code Section 1101
              Evidence Code section 1101, subdivision (a) prohibits admission of
evidence of a person’s character, including evidence in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion. The
exceptions to the bar on admissibility of evidence of uncharged acts are set forth in
section 1101(b) which states, in relevant part: “Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident . . .) other than his or her disposition
to commit such an act.”
              “‘[Evidence Code s]ection 1101, subdivision (b) allows evidence of
uncharged misconduct when it is relevant to establish a material fact other than the
person’s bad character or criminal disposition. [Citation.] The admissibility of such
evidence turns largely on the question whether the uncharged acts are sufficiently similar
to the charged offenses to support a reasonable inference of the material fact they are
offered to prove.’” (People v. Burnett (2003) 110 Cal.App.4th 868, 880-881.)
              Evidence of a defendant’s uncharged misconduct, if relevant under
section 1101(b), is subject to Evidence Code section 352. (People v. Ewoldt (1994) 7
Cal.4th 380, 404.) Evidence Code section 352 gives the trial court discretion to exclude
evidence if its probative value “is substantially outweighed by the probability that its
admission will . . . necessitate undue consumption of time or . . . create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” To be admissible,
evidence of a defendant’s uncharged misconduct “must have substantial probative value
that is not greatly outweighed by the potential that undue prejudice will result from
admitting the evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)




                                             16
D. No Error in Allowing Evidence of the 2009 DUI
              The trial court allowed the evidence of the 2005 road rage incident and the
2009 DUI under the theory the evidence was relevant to show that Farley knew driving a
motor vehicle without caution or while under the influence of alcohol was dangerous to
human life. The evidence of the 2009 DUI was relevant and admissible for that purpose
under section 1101(b).
              Farley’s conduct leading to his arrest and conviction for DUI in 2009 was
relevant to demonstrating that he knew or should have known that taking the wheel of a
car while intoxicated can lead to extremely reckless driving and dangerous behavior, with
serious personal consequences. The jury was entitled to infer that Farley’s conduct
leading to the 2009 DUI imparted to Farley a knowledge and understanding of the
personal and social consequences of drunk driving. Evidence of the 2009 DUI has
substantial probative value that was not “greatly outweighed” by the potential for undue
prejudice. (People v. Lenart, supra, 32 Cal.4th at p. 1123.)
E. Any Error in Allowing Evidence of the 2005 Road Rage Incident Was Harmless.
              In concluding that evidence of the 2005 road rage incident was admissible,
the trial court relied on Ortiz, supra, 109 Cal.App.4th 104, in which the Court of Appeal
addressed whether evidence of prior uncharged acts of reckless driving, including driving
while under the influence, was admissible to prove implied malice in a situation in which
the defendant was not driving under the influence when he committed the charged
offense. The court in Ortiz concluded: “A jury is entitled to infer that regardless of the
mental state or condition that accompanies an instance of reckless driving—whether
intoxication, rage, or wilful irresponsibility—the driver’s subsequent apprehension and
prosecution for that conduct must impart a knowledge and understanding of the personal
and social consequences of such behavior.” (Ortiz, supra, at p. 115.)
              Farley argues Ortiz does not support admission of the prior uncharged
misconduct evidence because the murder charge against him were based on implied

                                             17
malice arising from driving under the influence, not from reckless driving, and the
charged incident was not the culmination of a course of reckless driving. Thus, he
argues, it could not be inferred that, because he engaged in unintoxicated reckless driving
in 2005, he was aware that his nonreckless, intoxicated driving in 2011 was dangerous to
human life.
              Farley argues that evidence of prior acts of reckless driving was highly
prejudicial because “[t]here is no evidence that [his] driving prior to reaching the
intersection of Culver and Irvine was in any way dangerous.” Farley’s primary defense
was that he turned left on a green turn arrow, while M.G. sped through a red light. He
presented an expert traffic accident investigator and reconstructionist who testified, based
on his investigations and calculations, that Farley probably entered the intersection at the
end of a green left turn arrow or on a yellow left turn arrow and that Farley had the
right-of-way. Evidence that Farley drove recklessly on a prior occasion could lead the
jury to discount his primary defense, disbelieve his expert, and conclude he drove
recklessly through a red turn arrow into M.G.’s car.
              We conclude any error in allowing evidence of the 2005 road rage incident
was harmless, and the jury instructions cured any prejudice. The jury was instructed that
“[t]he People presented evidence that the defendant committed other acts that were not
charged in this case” and that the jury could consider such evidence only for the limited
purpose of deciding whether “[t]he defendant knew that driving a motor vehicle without
caution and/or while under the influence of alcohol was dangerous to human life.” The
jury also was instructed: “Do not consider this evidence for any other purpose[.] . . . [¶]
[Do not conclude from this evidence that the defendant has a bad character or is disposed
to commit crime.]” We presume the jury is intelligent and understood and followed the
jury instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) We therefore
presume the jury in this case considered the evidence of the 2005 road rage incident only
for the purpose permitted by the instructions.

                                             18
                                               III.

                The Trial Court Did Not Err by Allowing Testimony
              About Statements Made at a MADD Victim Impact Panel.
              Farley argues the trial court erred by allowing the prosecutor to elicit from
Graham testimony describing the presentations given by three speakers at the MADD
victim impact panel attended by Farley on July 2, 2009. He contends her testimony was
irrelevant and more prejudicial than probative.
A. Graham’s Testimony
              Graham, a prosecution witness, testified she is a victim advocate for
MADD and works with MADD victim impact panels. She identified her name on a
sign-in sheet for speakers, staff, and volunteers, and recognized Farley’s name on an
attendance sheet, for a MADD victim impact panel held on July 2, 2009. At this point, a
sidebar was conducted during which the prosecutor expressed his intention to ask
Graham whether she was familiar with the accounts given by the three speakers at the
victim impact panel, and, if she answered yes, his intention to ask her about the content
of those accounts. Farley’s counsel posed a hearsay objection. The trial court stated the
testimony would not be hearsay because it was not going to be offered for the truth of the
matter asserted but to determine whether Farley had “a subjective actual awareness of the
risks of driving while under the influence.”
              Thereafter, Graham testified, in summary fashion, about what each of the
three speakers said at the MADD victim impact panel on July 2, 2009. The three
speakers were Desiree Garcia, Richard Nelson, and Suzanne Short. Graham testified:
“Desiree Garcia spoke about losing her mother while Desiree was . . . 20 years old or
right in there, and she talked about when the police came and told her and how that
affected her. It tore her apart. [¶] She was an only child and her mother and her had
been together their whole lives and now to be without her and at such a young age having
to plan the funeral and somehow figure out how to get on with her life . . . .”


                                               19
              As to Nelson, Graham testified: “[H]e is a sheriff and he talk[ed] about
different scenes that he has come upon, and he really stresses about alternatives to driving
yourself home and to finish your plan when you are going out drinking for the evening
. . . know how you are getting from that place; if it is a taxi. He talk[ed] about you can
hire a helicopter for less than you paid for this D.U.I., that sort of thing, so he is giving
kind of the law and to please finish your plan.”
              Graham testified that Short, who had since passed away, talked about being
made a quadriplegic on her 21st birthday, spending the rest of her life unable to care for
herself, and requiring a live-in attendant to take care of her. “It was not the life she had
planned she actually doesn’t have a voice it is more of a real low whisper and so that’s
pretty [meaningful] just by itself seeing her there in the [wheel]chair seeing she is not
able to speak for herself and everything that has to be done . . . .”
B. Preliminary Issues
              The Attorney General argues that Farley failed to preserve his challenge to
Graham’s testimony, based on relevance and prejudice, because at trial he made only a
hearsay objection. (People v. Mooc (2001) 26 Cal.4th 1216, 1233, fn. 6.) We conclude
otherwise. The trial court had the opportunity to consider probative value and risk of
undue prejudice. When the prosecutor described the evidentiary question presented as
“basically a[n Evidence Code section] 352 analysis,” the trial court responded, “I
understand that.”
              Farley argues the trial court erred by ruling on the admissibility of
Graham’s testimony without any information about the testimony’s substance or an offer
of proof. Since the prosecutor did not know how Graham would testify, an offer of proof
would not have been possible, and it was incumbent upon Farley to make motions to
strike testimony that turned out to have been inadmissible. Assuming the trial court erred
by ruling without information about the substance of Graham’s potential testimony, the
error was harmless for, as we shall explain, the testimony was admissible

                                              20
C. Evidence Code Section 352
              “Under Evidence Code section 352, the probative value of the proffered
evidence must not be substantially outweighed by the probability that its admission
would create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Graham’s
testimony on what the speakers said at the MADD victim impact panel was relevant to
show that Farley was aware, not only of the life-threatening risks of drinking and driving,
but also of its actual consequences. (People v. David, supra, 230 Cal.App.3d at p. 1115;
People v. Murray (1990) 225 Cal.App.3d 734, 745.) Graham’s testimony showed Farley
knew of at least two instances in which drunk driving had resulted in death or severe
injury and he had been advised by a law enforcement officer at the MADD victim impact
panel not to drive after an evening of drinking. Graham’s testimony was therefore highly
probative of Farley’s knowledge of the hazards of driving while intoxicated.
              Although Farley does not dispute such probative value, he argues it was
outweighed by the “substantial danger of inflaming the jury’s passions by engendering
feelings of sympathy for the victims of the charged offenses and their families.” In
support of this argument, he relies on People v. Diaz (2014) 227 Cal.App.4th 362,
365-366, 368, in which the Court of Appeal reversed a second degree murder conviction
on the ground that the trial court erred by permitting the jury to watch two videos the
defendant had watched in prior mandatory alcohol education programs. One video was
about 29 minutes in length and showed the aftermath of several car crashes in the State of
Delaware, including an alcohol-related crash in which one person was killed and another
was seriously injured. (Id. at p. 370.) The other video was about 33 minutes in length
and included testimonials from a mother and a father, each of whom had a son who was
killed in an alcohol-related car crash. (Id. at pp. 375-376.) “The videos include
numerous tearful testimonials from the families of victims of alcohol-related offenses,
statements from a prosecutor and a defense attorney concerning the high rates of

                                            21
convictions for such offenses, and statements from a judge to the effect that punishment
is needed and is effective for alchohol-related driving offenses.” (Id. at p. 365.) The
Court of Appeal concluded that allowing the jury to watch the videos was reversible error
because they included “a large amount of extremely prejudicial material presented in a
format uniquely likely to elicit precisely the type of prejudice that Evidence Code
section 352 is designed to prevent.” (Id. at p. 380.)
              Here, in stark contrast, the prosecution did not present video or audio
recordings of the MADD victim impact panel, but only elicited Graham’s testimony
about what three panel speakers said. Graham’s testimony was very brief and provided
just a synopsis of each speaker’s talk, without the tears and emotions of the videos
deemed prejudicial in People v. Diaz. One speaker, Nelson, talked on the uncontroversial
topic of making an alternate plan for driving home after a night of drinking. Graham
seems to have testified calmly and dispassionately, and the record does not suggest
otherwise. The probative value of Graham’s testimony was not outweighed, much less
substantially outweighed, by the probability its admission would create substantial danger
of undue prejudice, confusing the issues, or misleading the jury.
                                            IV.

                 Counsel Was Not Ineffective by Failing to Object and
                   Move to Strike Cross-examination Testimony of
                 Dr. Thomas. Any Error in Overruling Objections to
                  Her Cross-examination Testimony Was Harmless.
              Farley argues (1) his trial counsel was ineffective for not objecting and
moving to strike when Dr. Thomas testified on cross-examination that he “consciously
disregards what is expected of him in the service of his own sometimes distorted rational
needs” (the consciously disregards testimony) and (2) the trial court erred by overruling
his objection to, and motion to strike, Dr. Thomas’s testimony on cross-examination that
“[t]he judgment that goes along with knowing about not drinking and driving isn’t going
to be the same for him as it is for others” (the judgment about drinking and driving

                                             22
testimony). We conclude there was no ineffective assistance of counsel as to the
consciously disregards testimony, and any error in overruling Farley’s objection or
denying his motion to strike the judgment about drinking and driving testimony was
harmless.
A. Penal Code Section 29
              Penal Code section 29 provides: “In the guilt phase of a criminal action,
any expert testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required mental
states, which include, but are not limited to, purpose, intent, knowledge, or malice
aforethought, for the crimes charged. The question as to whether the defendant had or
did not have the required mental states shall be decided by the trier of fact.”
                                                                          1
              In People v. Coddington (2000) 23 Cal.4th 529, 582-583, the California
Supreme Court explained the permissible and impermissible uses of expert testimony on
mental state in a criminal trial: “Expert opinion on whether a defendant had the capacity
to form a mental state that is an element of a charged offense or actually did form such
intent is not admissible at the guilt phase of a trial. [Citation.] [Penal Code s]ections 28
and 29 permit introduction of evidence of mental illness when relevant to whether a
defendant actually formed a mental state that is an element of a charged offense, but do
not permit an expert to offer an opinion on whether a defendant had the mental capacity
to form a specific mental state or whether the defendant actually harbored such a mental
state. An expert’s opinion that a form of mental illness can lead to impulsive behavior is
relevant to the existence vel non [(or not)] of the mental states of premeditation and




 1
   Overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, footnote 13.

                                             23
deliberation regardless of whether the expert believed appellant actually harbored those
                                         2
mental states at the time of the killing.” (Fns. omitted.)
              “In other words, the defendant cannot put on an expert to testify that,
because of his mental disorder or condition . . . , he or she did not have the ability, or
capacity, to form or harbor whatever mental state is a required element of the charged
offense, such as intent to kill, or malice aforethought, or premeditation, or deliberation.”
(People v. Cortes (2011) 192 Cal.App.4th 873, 908.)
B. Dr. Thomas’s Cross-examination
              To place the challenged testimony in context, we quote extensively from
the cross-examination of Dr. Thomas. First, as to the consciously disregards testimony,
the following exchange took place (the challenged question and answer are in italics):
              “Q. [(The prosecutor)] . . . [Farley] has average intelligence?
              “A. [(Dr. Thomas)] He did.
              “Q. He is able to learn?
              “A. Yes.
              “Q. So, he is aware of what society expects?
              “A. He is.
              “Q. There are times that he consciously disregards that; is that right?
              “A. Yes. He consciously disregards what is expected of him in the service
of his own sometimes distorted rational needs.
              “Q. But that’s also part of egocentric, you do what you want to do even
though you know others expect something different, you do what you want to do?

 2
   The Attorney General argues Penal Code section 29 only prohibits an expert from
offering an opinion “on the ultimate question of whether the defendant had or did not
have a particular mental state at the time he acted.” That proposition is decidedly wrong.
As explained in People v. Coddington, supra, 23 Cal.4th at pages 582-583, section 29
also prohibits an expert from testifying on the issue whether the defendant had the
capacity to form a particular mental state.

                                              24
              “A. That’s part of it.
              “Q. So, he does have an awareness of what he is supposed to do?
              “A. He knows, yes.” (Italics added.)
              Next, as to the judgment about drinking and driving testimony, this
exchange took place (the challenged question and answer are in italics):
              “Q. [(The prosecutor)] . . . You are not saying that the psychological,
psychiatric conditions that [Farley] has would force someone to drink and drive?
              “A. No. Those psychological conditions that lead him to drink and drive
or behave aggressively are about his understanding of himself. He has chemical
dependence. The judgment that goes along with knowing about not drinking and driving
isn’t going to be the same for him as it is for others. He is chemically dependent.
              “[Defense counsel]: I am going to object to that last answer in its entirety
and move it be stricken.” (Italics added.)
              A sidebar conference was held, after which the trial court overruled the
objection with the proviso: “I think that [defense counsel] took pains not to ask the
witness certain questions that might open the door or lead to an opinion as to whether or
not he was capable of forming malice aforethought. You have intentionally phrased
some of your questions such as conscious disregard in a manner which seems to be
consistent with the instructions. I am suggesting to you that you be very careful here.
You want to simply ask the witness, now, you are not forming an opinion. You are not
here to state whether he has the capacity to form the intent or he did have malice
aforethought that night, that’s one thing, but asking . . . questions which would negate the
intent seems to—or negate any potential defense might open the door for the other side,
stay away from it.”
C. No Ineffective Assistance of Counsel as to the Consciously Disregards Testimony
              Farley contends his trial counsel was ineffective by failing to object when
the prosecutor asked Dr. Thomas, “[t]here are times that he consciously disregards that; is

                                             25
that right?” and by failing to move to strike her answer. To prevail on a claim of
ineffective assistance of counsel, the defendant must prove (1) his or her attorney’s
representation was deficient in that it fell below an objective standard of reasonableness
under prevailing professional standards; and (2) his or her attorney’s deficient
representation subjected him or her to prejudice. (Strickland v. Washington (1984) 466
U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Neither prong is met here.
               Under Penal Code section 29, it would have been improper for the
prosecutor to ask Dr. Thomas whether Farley had the capacity to form the mental state of
conscious disregard for life because it is the mental state necessary for implied malice
murder. (People v. Taylor, supra, 32 Cal.4th at p. 867.) But the prosecutor did not ask
that question; rather, the prosecutor asked whether there were times when Farley
consciously disregards “what society expects.” During the sidebar conference, the trial
court noted the prosecutor’s questions about conscious disregard seemed intentionally
phrased to be consistent with jury instructions. Though not warning the prosecutor his
question was improper, the court advised him to be “very careful here.”
               Farley relies on People v. Rangel (1992) 11 Cal.App.4th 291, 298), in
which the Court of Appeal concluded the trial court properly excluded a psychiatrist’s
expert testimony that “‘in that state of intoxication, the person is not able to think
rationally and deliberate, which means weigh consequences, think about things in logical
sequences.’” People v. Rangel was a first degree murder case in which premeditation and
deliberation was the necessary mental state. (Id. at p. 294.) The defense expert testified
squarely on the ultimate facts that the defendant did not deliberate, premeditate, or harbor
the requisite specific intent to kill. (Id. at pp. 298, 300.)
               Here, the prosecutor did not ask Dr. Thomas, and she did not testify, about
whether Farley had the capacity to form the requisite mental state of conscious disregard
for human life. Farley’s trial counsel did not perform deficiently because any objection
likely would have been overruled and any motion to strike denied by the trial court.

                                               26
(People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Cudjo (1993) 6 Cal.4th 585,
616; People v. Price (1991) 1 Cal.4th 324, 387.)
              If deficient, counsel’s performance did not result in prejudice. Prejudice
means a “reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S.
at p. 694.) A reasonable probability means a “probability sufficient to undermine
confidence in the outcome.” (Ibid.) Dr. Thomas’s answer to the prosecutor’s question
was, “[Farley] consciously disregards what is expected of him in the service of his own
sometimes distorted rational needs.” The jury most likely understood that response to be
directed to Farley’s rebellious personality, which, as Dr. Thomas had already explained,
he expressed in his extreme manner of dress and appearance, which made his parents
angry and gave him a sense of control over his life. The jury likely did not understand
Dr. Thomas’s testimony to mean that Farley acted with conscious disregard for human
life, particularly considering the jury had not yet been instructed on the elements of
implied malice murder. It was therefore not reasonably probable the outcome of trial
would have been different if Farley’s trial counsel had objected to the prosecutor’s
question or moved to strike Dr. Thomas’s answer.
D. Harmless Error, If Any, as to the Judgment About Drinking and Driving Testimony
              Farley contends the trial court erred by overruling his objection to the
prosecutor’s question about whether “the psychological, psychiatric conditions” that
Farley suffers “would force someone to drink and drive.” We review the trial court’s
decision to admit or exclude mental state evidence under the abuse of discretion standard.
(People v. Cortes, supra, 192 Cal.App.4th at p. 908.) The trial court did not err by
overruling Farley’s objection because the prosecutor did not ask Dr. Thomas about
Farley’s capacity to form the mental state of conscious disregard for human life.
              If the trial court erred, the error was not prejudicial under the standard of
People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Cortes, supra, 192

                                             27
Cal.App.4th at p. 912 [People v. Watson standard applies to admission of mental state
evidence].) Dr. Thomas’s answer, though arguably subject to a motion to strike, helped
Farley more than it hurt him. Dr. Thomas testified that “judgment that goes along with
knowing about not drinking and driving isn’t going to be the same for him as it is for
others. He is chemically dependent.” In other words, Dr. Thomas testified that Farley’s
psychological conditions and chemical dependency meant he did not have the same
ability as others to make judgments about whether to drink and drive.
               The jury most likely understood Dr. Thomas’s testimony to mean that
Farley lacked or had impaired ability to form the mental state of conscious disregard of
life necessary for implied malice murder. The trial court understood this perfectly. It
warned the prosecutor to “stay away from” questions that would “negate the intent” or
“negate any potential defense” because doing so “might open the door” for Farley.
                                              V.

                   Trial Counsel Was Not Ineffective by Conceding the
                          Knowledge Element of Implied Malice.
               During closing argument, Farley’s trial counsel conceded that while Farley
knew drunk driving was dangerous to life and argued he did not act with conscious
disregard of life because he thought he was able to drive to the Del Taco restaurant.
Farley contends his trial counsel was ineffective for making this “untenable” argument.
A. Background
               The trial court instructed the jury on the elements of implied malice as
follows: “The 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.”



                                              28
              In closing argument, Farley’s trial counsel conceded elements 1, 2, and 3.
Counsel stated: “Mr. Farley, in his defense, has never one time brought up that he
thought that drinking and driving was not dangerous. It has never been contested. In his
statement he admitted that he knew it.” Counsel told the jury, “don’t waste your time on”
the first three elements of implied malice murder. Counsel instead focused on the fourth
element and argued Farley did not act with conscious disregard because he had a good
faith belief he was fit to drive to the Del Taco restaurant. Counsel stated: “[Farley] made
a mistake. He thought he had waited long enough to where he could drive.” Later,
counsel argued: “[I]t had been a while since [Farley] had a drink. He had cigarettes and
was arguing. So we have adrenalin, we have nicotine going in there. We have his OCD
symptoms being calmed down. There is a period of time where he doesn’t drive. This
goes to implied malice. This goes to is he acting in conscious disregard or did the guy
just make a mistake. He just made a mistake. He shouldn’t have been driving, . . . but he
didn’t do this because he is thinking, oh, I am going to go driving this night. He made a
mistake thinking he had waited a long enough time.”
B. The Record Discloses a Rational Tactical Reason for Conceding Knowledge.
              “‘“[W]e accord great deference to counsel’s tactical decisions” [citation],
and we have explained that “courts should not second-guess reasonable, if difficult,
tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally
not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of
the available facts.”’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “Unless a
defendant establishes the contrary, we shall presume that ‘counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.’ [Citation.]” (People v.
Ledesma (2006) 39 Cal.4th 641, 746.) We reverse on direct appeal for ineffective
assistance of counsel only when “the record on appeal demonstrates there could be no



                                              29
rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th
415, 442.)
              The record discloses Farley’s trial counsel had a rational tactical purpose
for conceding Farley knew that driving under the influence was dangerous to human life.
The evidence that Farley knew that driving while under the influence was dangerous to
human life was so overwhelming that trial counsel would have lost credibility by arguing
otherwise. (See People v. Freeman (1994) 8 Cal.4th 450, 498 [“Recognizing the
importance of maintaining credibility before the jury, we have repeatedly rejected claims
that counsel was ineffective in conceding various degrees of guilt.”].) By conceding an
unwinnable point, Farley’s trial counsel could gain credibility with the jury in trying to
convince it that Farley did not act with conscious disregard of life.
              Farley argues that by conceding knowledge, his trial counsel doomed that
argument because, “[i]n the circumstances of this case, [Farley] could not ‘know’ that his
act was dangerous to human life and ‘deliberately act’ without also having ‘conscious
disregard for human life.’” Both the knowledge element and the conscious disregard
element of implied malice are subjective. (People v. Knoller, supra, 41 Cal.4th at p. 157;
People v. Taylor, supra, 32 Cal.4th at p. 867.) A defendant might know that driving
while intoxicated was dangerous to life but also entertain the belief that his or her actions
are not in conscious disregard for human life. Here, for example, trial counsel argued
that Farley believed in good faith, albeit mistakenly, that he was fit to drive to the Del
Taco restaurant.
              In addition, a major, if not the primary, defense argued by Farley’s trial
counsel was that Farley did not cause the collision. He presented an expert traffic
accident investigator and reconstructionist, and his trial counsel presented various
calculations to show, and argued extensively, that Farley did not turn left against a red
light and had the right-of-way upon entering the intersection. Conceding the knowledge
element of implied malice fully preserved the defense that Farley had a green turn arrow,

                                             30
made a lawful left turn into the intersection, and therefore did not act with conscious
disregard for life.
                                             VI.
                            There Was No Cumulative Error.
               We have identified two possible errors. The first is allowing evidence of
the 2005 road rage incident. We concluded the jury instruction rendered harmless any
error. The second is overruling Farley’s objection to the prosecutor’s question whether
“the psychological, psychiatric conditions” that Farley suffers “would force someone to
drink and drive.” We concluded any error was harmless because Dr. Thomas’s answer
helped Farley more than it hurt him. As there was no reasonable probability the jury
would have reached a result more favorable to Farley absent a combination of the two
possible errors, there was no cumulative error. (People v. Jandres (2014) 226
Cal.App.4th 340, 361.)
                                             VII.

                  Sentence on the Enhancement to Count 1 Is Vacated.
               It appears that the trial court ordered that, as to count 1, the enhancement
alleged under Penal Code section 12022.7, subdivision (a) is to be stayed. The abstract of
judgment reflects that action. Stay of sentence necessarily implies imposition of
sentence, yet, as Farley asserts, the section 12022.7, subdivision (a) enhancement was not
alleged as to count 1. The Attorney General agrees. In the disposition, we will direct the
trial court to vacate imposition of sentence on the section 12022.7, subdivision (a)
enhancement as to count 1 and to prepare an amended abstract of judgment.
                                            VIII.
             Credits Were Stated Correctly in the Abstracts of Judgment.
               Farley asserts the abstract of judgment for counts 2 and 3 is incomplete
because it does not reflect any credits. Two abstracts of judgment were prepared and
entered: One was an indeterminate abstract of judgment for count 1, and the other was a

                                              31
determinate abstract of judgment for counts 2 and 3. The indeterminate abstract of
judgment reflects total credits of 902 days.
              Penal Code section 2900.5, subdivision (b) provides: “For the purposes of
this section, credit shall be given only where the custody to be credited is attributable to
proceedings related to the same conduct for which the defendant has been convicted.
Credit shall be given only once for a single period of custody attributable to multiple
offenses for which a consecutive sentence is imposed.” Sentence under count 2 was
consecutive to that of count 1; sentence under count 3 was stayed. Thus, credits were
correctly stated on the indeterminate abstract of judgment for count 1.


                                      DISPOSITION
              The sentence on the enhancement alleged under Penal Code
section 12022.7, subdivision (a) as to count 1 is vacated. As so modified, and in all other
respects, the judgment is affirmed. The trial court is directed to prepare an amended
indeterminate abstract of judgment on count 1 and to transmit a certified copy of the
abstract of the judgment as amended to the Department of Corrections and Rehabilitation.




                                                    FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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