Filed 3/3/14 P. v. Camargo CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064077
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. F09904698)
    v.

IVAN SERRANO CAMARGO,                                                                    OPINION
    Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey
D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                   INTRODUCTION
       Appellant Ivan Serrano Camargo was convicted by jury, in count 1, of the murder
of Pauline Marie Rangel (Pen. Code, § 187, subd. (a))1; in count 2, leaving the scene of
an accident which caused death or great bodily injury (Veh. Code, § 20001, subd. (a)); in
count 3, driving while under the influence of alcohol and/or a drug and doing an act or
neglecting a duty imposed by law, which proximately caused bodily injury to Rangel
(Veh. Code, § 23153, subd. (a)); and, in count 4, driving with .08 percent blood-alcohol
level causing injury and doing an act or neglecting a duty imposed by law, which
proximately caused bodily injury to Rangel (Veh. Code, § 23153, subd. (b)). Camargo
was sentenced to 15 years to life for the murder. Sentence on the other counts was
imposed and stayed pursuant to section 654.
       On appeal, Camargo contends that the trial court erred when it failed to instruct on
involuntary manslaughter under section 192, subdivision (b) as a lesser included offense
of murder; that the prohibition against instructing on involuntary manslaughter as a lesser
included offense of implied malice murder committed in driving a vehicle denied him his
right to equal protection; that instructing that evidence of uncharged criminal acts could
be considered true if proven by a preponderance of the evidence violated his right to have
guilt established beyond a reasonable doubt; and that cumulative error occurred. We
disagree and affirm.
                               STATEMENT OF FACTS
       We view the evidence in the light most favorable to the verdict and resolve all
conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes
(1986) 42 Cal.3d 284, 303.)
       On August 11, 2009, after 10:00 p.m., Navdeep Uppal, who lived near the
intersection of Peach and Manning Avenues in Fresno, heard a collision and told his
1      All further statutory references are to the Penal Code unless otherwise stated.



                                             2.
brother to call 9-1-1. Within five minutes, Uppal and his brother arrived at the
intersection and saw Camargo, with blood on him, walking towards them from a pickup
truck. As Camargo approached, Uppal asked if he was alright, but Camargo did not
respond. Camargo was not walking straight, as if he was intoxicated.
       A green Honda Civic was visible 25-30 feet from the intersection, in a field by an
irrigation canal. Camargo walked toward the Honda. Others gathered at the scene and
Uppal lost sight of Camargo.
       California Highway Patrol officers arrived at the scene at about 10:30 p.m. There,
officers saw Camargo’s white GMC pickup with major front-end damage, consistent with
high-speed impact. The driver’s door was open and the pickup empty. There were beer
cans on the floorboard and there was a strong odor of alcohol in the pickup. Several beer
cans were open, some were crushed, and there was beer soaked into the floorboard.
Items inside the pickup were scattered, and there was blood on the steering wheel.
       The Honda Civic, located on the other side of the canal, had major damage to the
passenger side, almost to the gear shift in the center of the vehicle. The Honda also
sustained damage to the front end, hood, trunk, windshield, pillars and roof, indicating
the Honda had rolled over at least once. Damage to the passenger side of the Honda
matched damage to the front end of the pickup, indicating that the pickup broadsided or
“T-boned” the Honda. Physical evidence at the scene indicated that, upon impact, the
Honda changed direction, continued up a dirt bank, struck a concrete water valve with the
driver’s side door, went airborne, cleared a 17-foot wide canal at a diagonal, landed on its
wheels, overturned on a dirt access road, and came to rest on its wheels as it struck a
guide post in a vineyard. The lack of skid marks approaching the intersection indicated
that neither driver braked before impact.
       Inside the Honda, officers observed Rangel, slumped to her side. She had a
seatbelt on, but sustained major head trauma. She was unresponsive and had no pulse. A



                                             3.
subsequent examination revealed that Rangel died from head and chest trauma due to
blunt impact from the collision.
       People at the scene indicated the direction in which Camargo had left. With the
aid of a helicopter and heat-seeking device, Camargo was discovered in a vineyard. After
refusing to comply with directives to surrender, officers forcibly removed Camargo from
the vineyard and apprehended him.
       Camargo had a seatbelt abrasion over his left shoulder, consistent with being in the
driver’s seat at the time of the collision. He had minor abrasions on his left cheek and
earlobe, and blood on his shirt. Officers noted Camargo had signs of intoxication,
including a strong odor of alcohol on his person; red, watery eyes; slurred speech; and
was slow to respond to officers’ questions. When asked if he had been drinking,
Camargo stated that he had.
       After Camargo was advised on and waived his Miranda2 rights in Spanish, an
officer interviewed him in Spanish about the collision. Camargo said that he drank four
12-ounce cans of Bud Light beer between 11:00 a.m. and 6:00 p.m. According to
Camargo, he was going about 60 miles per hour, did not see the stop sign at the
intersection and “must have ran it.” Camargo felt something “hard” hit him. After the
collision, he became frightened and did not want to get caught, so he hid in the vineyard.
       Blood drawn at 11:52 p.m. showed a blood-alcohol content of 0.14 percent. Due
to the time gap between the collision and the blood draw, it was estimated that Camargo’s
blood-alcohol content at the time of the collision must have been 0.17 percent. Based on
a hypothetical that assumed Camargo’s approximate height and weight and his claimed
amount of drinking, an expert testified that the person should not have had any alcohol in
their system at 10:15 p.m. Based on a hypothetical that assumed Camargo’s approximate
height and weight, his measured blood-alcohol content of 0.14 percent, and
2      Miranda v. Arizona (1966) 384 U.S. 436, 474.



                                             4.
circumstances of the collision, the expert testified that the driver could not safely operate
a motor vehicle.
       Examination of the pickup showed that its speed was approximately 76 miles per
hour at impact and there was no indication that Camargo had applied the brakes. Both
the pickup and the Honda were found to be fully functional prior to the collision, and
both had headlights on at the time of the collision.
       It was stipulated at trial that Camargo had previously been arrested for driving
under the influence in November of 2006 and again in August of 2007. In the first
instance, he pled guilty to driving with a .08 percent blood-alcohol level (Veh. Code,
§ 23152, subd. (b)); in the second with “wet reckless” driving (Veh. Code, § 23103,
pursuant to Veh. Code, § 23103.5). Camargo was on probation for both offenses at the
time of the August 2009 collision. Camargo received formal warnings at the time he
entered his pleas, including potential liability for murder, and he had attended various
classes on the potential consequences of driving under the influence.
       In Camargo’s defense, two people testified that they had been with Camargo on
the evening of the collision. Both testified that Camargo looked tired and stressed, but
not intoxicated when they saw him.
       A licensed mechanical engineer, an expert in collision reconstruction, estimated
that the pickup was traveling between 62 and 69 miles per hour at the time of the impact.
                                       DISCUSSION

   I. INSTRUCTIONS ON LESSER INCLUDED OFFENSE OF INVOLUNTARY
      MANSLAUGHTER
       Camargo argues the trial court erred by failing to instruct the jury, sua sponte, on
involuntary manslaughter as a lesser included offense of murder, and that his conviction
must be reversed for this failure. We disagree.
       “‘“[U]nder California law, a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually alleged


                                              5.
in the accusatory pleading, include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.”’” (People v. Sanchez
(2001) 24 Cal.4th 983, 988 (Sanchez), overruled on another point in People v. Reed
(2006) 38 Cal.4th 1224, 1228-1229, and quoting People v. Breverman (1998) 19 Cal.4th
142, 154, fn. 5.)
       In general, the trial court has a duty to instruct the jury sua sponte as to the
principles of law relevant to and governing the case. (People v. Wims (1995) 10 Cal.4th
293, 303, overruled on other grounds in People v. Sengpadychith (2001) 26 Cal.4th 316,
326; People v. Saddler (1979) 24 Cal.3d 671, 681.) This duty extends to “instructions on
lesser included offenses when the evidence raises a question as to whether all of the
elements of the charged offense” have been established, but instruction on lesser included
offenses are not required if “there is no evidence that the offense [is] less than that
charged.” (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Barton (1995) 12
Cal.4th 186, 200-201.) Instructions on lesser included offenses must be given whenever
there is “‘“evidence from which a jury composed of reasonable [persons] could have
concluded”’ that the particular facts underlying the instruction did exist.” (People v.
Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in Barton, supra,
at p. 201; People v. Flannel (1979) 25 Cal.3d 668, 684.)
       Section 192, subdivision (b), defines involuntary manslaughter as “the unlawful
killing of a human being without malice” during “the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might produce death, in
an unlawful manner, or without due caution and circumspection.” Most importantly to
our discussion, subdivision (b) also provides in pertinent part: “This subdivision shall not
apply to acts committed in the driving of a vehicle.” (Ibid.)
       Despite the fact that section 192, subdivision (b), is very clear that involuntary
manslaughter is inapplicable to acts committed in the driving of a vehicle and despite the
fact that defense counsel, with Camargo’s approval, withdrew her request for such an

                                              6.
instruction3, Camargo still makes various arguments that involuntary manslaughter
instructions should have been given sua sponte. We find no merit to any of Camargo’s
arguments.
       Camargo correctly notes that the Legislature amended California’s involuntary
manslaughter statute in 1945, now codified in section 192, subdivision (b), to preclude
the application of involuntary manslaughter to unlawful homicides committed in the
driving of a vehicle by specifically stating, “[t]his subdivision shall not apply to acts
committed in the driving of a vehicle.” It simultaneously created a third type of
manslaughter, denominated “vehicular” manslaughter, now codified in subdivision (c) of
section 192. (Stats. 1945, ch. 1006, §§ 1-2, pp. 1942-1943.)
       According to Camargo, the purpose of the 1945 amended statute was to ensure
that vehicular homicides would be prosecuted under the then-new vehicular manslaughter
statute. For more than 30 years after the amendment, cases of vehicular homicide were
prosecuted as vehicular manslaughter, not murder, except where the defendant’s conduct
fell within a felony-murder theory. (See, e.g., People v. Calzada (1970) 13 Cal.App.3d


3       Prior to commencement of jury selection, Camargo submitted requested jury
instructions, including CALCRIM No. 580 [involuntary manslaughter, as a lesser
included offense of murder; No. 642 [lesser included offenses when defendant charged
with second-degree murder]; No. 572 [voluntary manslaughter]; No. 590 [gross vehicular
manslaughter while intoxicated; and No. 591 [vehicular manslaughter while intoxicated].
After discussion over the course of several days, including the possibility of amending
the information to add a charge of a lesser included offense which the prosecution chose
not to do, defense counsel withdrew her request for instruction on any lesser offenses.
When the court asked defense counsel if she was, “in essence, then, asking the jury
simply to decide the homicide issue on the basis of the second degree murder as
charged,” counsel stated that she was. The court then addressed Camargo and explained
that this meant it would be a “straight up or down decision,” and that “[i]f the jury finds
there was implied malice on your part, then they can convict on the second degree
murder. If they decide that there was no implied malice on your part, then there is no
homicide crime that they can convict you of, only the driving under the influence and the
other related charges.” Camargo stated that he agreed with that decision.



                                              7.
603, 605-607.) It was not until People v. Watson (1981) 30 Cal.3d 290, in which our
Supreme Court held that a death in a traffic collision may be prosecuted as second-degree
murder with implied malice and not exclusively as vehicular manslaughter. (Id. at pp.
293, 295-299.) Camargo argues therefore that the legislative purpose of the 1945
subdivision (b) amendment to section 192 “has no application to a case like [his], where
the prosecutor has chosen to prosecute outside the scope of the vehicular manslaughter
statute and instead file a murder charge in a vehicular homicide case.”
       To further support his argument, Camargo relies on our Supreme Court’s decision
in Sanchez, supra, 24 Cal.4th 983, which held that gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)) is not a lesser included offense of murder because the
statutory elements of murder do not include all of the elements of gross vehicular
manslaughter while intoxicated. In other words, murder can be committed in ways other
than by a motor vehicle or while intoxicated. (Sanchez, supra, at pp. 985, 988-989, 992.)
But, according to Camargo, since Sanchez cites with approval prior case law holding that
involuntary manslaughter is generally classified as a lesser included offense of murder
(Id. at pp. 989-990), Sanchez does not preclude instructing on involuntary manslaughter
as a lesser included offense of murder in a situation such as his because involuntary
manslaughter does not include as an element the use of a motor vehicle. In other words,
Camargo maintains that despite the express language of section 192, subdivision (b) at
issue here - “[t]his subdivision shall not apply to acts committed in the driving of a
vehicle” - subdivision (b) must be construed so that “generic” involuntary manslaughter
is a lesser included offense of “generic” murder committed with a vehicle.
       We disagree with Camargo’s claim that involuntary manslaughter is a lesser
included offense of murder in a case involving vehicle homicide. Such an assumption
ignores the plain language of section 192, subdivision (b), the fundamental definition of a
lesser included offense, and the reasoning and holding in Sanchez, on which he relies.



                                             8.
       The question in Sanchez was whether the defendant could be convicted of both
gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and murder. The
court in Sanchez determined that the defendant could be charged and convicted of both
offenses but that gross vehicular manslaughter while intoxicated is not a lesser included
offense of murder. In its reasoning, the Sanchez court first noted that,

       “Although the general tradition relied upon by defendant is well
       established, this court has not previously considered the question whether
       the settled practice of treating manslaughter as an offense necessarily
       included within murder should be extended to the more recently created
       crimes of vehicular manslaughter while intoxicated, and defendant does not
       identify a tradition of comparable pedigree with respect to such crimes.”
       (Sanchez, supra, 24 Cal.4th at p. 990.)

It then reasoned:

       “Although it long has been held that manslaughter is a lesser included
       offense of murder, this tradition has not explicitly included offenses
       requiring proof of specific elements unique to vehicular manslaughter.
       Unlike manslaughter generally, vehicular manslaughter while intoxicated
       requires proof of elements that are not necessary to a murder conviction.
       The use of a vehicle while intoxicated is not merely a ‘circumstance,’ but
       an element of proof when the charge is gross vehicular manslaughter while
       intoxicated. Gross vehicular manslaughter while intoxicated is not merely
       a degree of murder, nor is it a crime with a lengthy pedigree as a lesser
       included offense within the crime of murder.” (Id. at p. 991.)
       As noted by respondent, the ultimate result of the Sanchez decision is that, because
gross vehicular manslaughter is not a lesser included offense of murder and a defendant is
therefore not entitled to such lesser included instructions, the prosecutor in a drunk-
driving murder case must charge both vehicular manslaughter and murder or, if it chooses
to only charge a defendant with murder, it risks an acquittal on the murder charge in the
event the jury determines the facts do not support a finding of implied malice
aforethought. Thus, Sanchez’s holding does not advance Camargo’s position.
       Most importantly, Camargo’s argument ignores the plain meaning of the statutory
language set forth in section 192, subdivision (b), which clearly states that involuntary


                                             9.
manslaughter cannot be charged as a matter of law in cases involving allegedly unlawful
homicide committed through the use of an automobile. “Statutory construction begins
with the plain, commonsense meaning of the words in the statute, ‘“because it is
generally the most reliable indicator of legislative intent and purpose.”’ [Citation.]”
(People v. Manzo (2012) 53 Cal.4th 880, 885.) Witkin explains that this statutory
provision “makes the ordinary definition of involuntary manslaughter inapplicable to acts
committed in driving a vehicle.” (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Crimes Against the Person, § 262, p. 1086.)
        Under the plain meaning of the foregoing language in the involuntary
manslaughter statute (§ 192, subd. (b)), which Camargo refers to as “generic”,
involuntary manslaughter cannot be charged as a matter of law in cases involving
homicides committed through the use of a vehicle. As discussed, the constitutional right
to jury instructions on lesser included offenses is not absolute because the defendant must
present evidence substantial enough for a jury to convict the defendant of the lesser
included offense. (People v. Breverman, supra, 19 Cal.4th at p. 162.) Here, the evidence
did not merit the jury’s consideration of involuntary manslaughter under section 192,
subdivision (b). Camargo committed the offense while driving a motor vehicle and he
could therefore not be charged with or convicted of involuntary manslaughter. He
therefore had no right to have the jury instructed on involuntary manslaughter.
        We finally reject Camargo’s notion that, if the trial court instructs only on murder
in a case involving death occurring due to a defendant’s driving under the influence, an
absurd result might occur, namely that the jury cannot return a manslaughter verdict. In
other words, Camargo’s concern is that, because the jury has to make an “all or nothing”
decision, it will convict even if the evidence does not support all of the elements of the
allegation. But, as recognized in People v. Valentine (2006) 143 Cal.App.4th 1383,
1387:



                                             10.
       “[I]t has never been the law that an accused is entitled to instructions on
       offenses for which he is not charged in order to urge the jury that he could
       have been convicted of something other than what is alleged.”
If the prosecution charges a defendant only with murder, and the jury determines that
implied malice has not been established, the result is not absurd - the result is an acquittal
on the sole charge of murder. If the prosecution makes this election, it must accept such
a verdict from the jury.
       In sum, we conclude the trial court did not err by failing to sua sponte instruct the
jury that involuntary manslaughter under section 192, subdivision (b) is a lesser included
offense of second degree murder based on implied malice as charged in count 1.
       Moreover, even if we were to somehow find that the trial court should have
instructed the jury on involuntary manslaughter, any error would have been harmless. An
examination of the record does not establish a reasonable probability of a more favorable
result. (People v. Breverman, supra, 19 Cal.4th at p. 165; accord, People v. Thomas
(2012) 53 Cal.4th 771, 814.)

       “At least since 1981, when our Supreme Court affirmed a conviction of
       second degree murder arising out of a high speed, head-on automobile
       collision by a drunken driver that left two dead, California has followed the
       rule in vehicular homicide cases that ‘when the conduct in question can be
       characterized as a wanton disregard for life, and the facts demonstrate a
       subjective awareness of the risk created, malice may be implied .…’
       [Citation.] In such circumstances, ‘a murder charge is appropriate.’
       [Citation.] So-called implied malice second degree murder … is committed
       ‘when a person does “‘“an act, the natural consequences of which are
       dangerous to life, which act was deliberately performed by a person who
       knows that his conduct endangers the life of another and who acts with
       conscious disregard for life”’ .…” [Citations.] Phrased in a different way,
       malice may be implied when [a] defendant does an act with a high
       probability that it will result in death and does it with a base antisocial
       motive and with a wanton disregard for human life.’ [Citation.] ‘[A]
       finding of implied malice’ … ‘depends upon a determination that the
       defendant actually appreciated the risk involved, i.e., a subjective
       standard.’” (People v. Ortiz (2003) 109 Cal.App.4th 104, 109-110, quoting
       People v. Watson, supra, 30 Cal.3d at pp. 296-297, 298, 300, italics and fn.
       omitted.)


                                             11.
       The evidence in the instant case overwhelmingly supports a finding of implied
malice. Camargo had two prior convictions for allegations involving drinking while
driving, he had attended classes on the consequences of driving under the influence and
was repeatedly advised that he could be charged with murder if he killed someone while
driving under the influence. Unfortunately, he drove again while drinking. He drove
with a blood-alcohol content greatly in excess of the legal limit, he was speeding in
excess of 75 miles per hour, and he ran a stop sign before tragically ending the life of an
innocent individual. He then ran from the scene and hid to avoid detection. It is not
reasonably probable a jury would have found that he did not appreciate the risk involved
in his actions or act in wanton disregard for human life. (People v. Ortiz, supra, 109
Cal.App.4th at pp. 109-110.) Camargo’s conviction for implied malice second degree
murder will not be disturbed.
   II. EQUAL PROTECTION
       In the alternative to the above argument, Camargo contends that defining
involuntary manslaughter under section 192, subdivision (b) to exclude acts committed in
the driving of a vehicle violated his right to equal protection. Camargo’s argument is that
all defendants charged with implied malice murder are “entitled” to a jury instruction on
involuntary manslaughter as a lesser included offense, except those defendants charged
with “acts committed in the driving of a vehicle.”
       Camargo, however, bases his argument on a faulty premise. “A defendant
claiming that state legislation violates equal protection principles must first demonstrate
that the laws treat persons similarly situated in unequal manner.” (People v. Timms
(2007) 151 Cal.App.4th 1292, 1302.) But not all defendants charged with implied
malice murder are entitled to a jury instruction on involuntary manslaughter as a lesser
included offense. As explained earlier, a defendant is entitled to an instruction on a lesser
included offense only if the record contains substantial evidence of the lesser offense.
(People v. Moore (2011) 51 Cal.4th 386, 408-409.) Contrary to Camargo’s suggestion,

                                            12.
the evidence in an implied malice murder case does not necessarily require a jury
instruction on involuntary manslaughter as a lesser included offense. (See, e.g., People v.
Dixon (1995) 32 Cal.App.4th 1547, 1550, 1556-1558 [defendant charged with second
degree murder not entitled to instruction on involuntary manslaughter as a lesser included
offense because substantial evidence did not support the instruction]; People v. Evers
(1992) 10 Cal.App.4th 588, 592, 598 [same].)
       Based on the foregoing, we reject Camargo’s equal protection challenge.
   III. INSTRUCTION ON UNCHARGED CRIMINAL ACTS
       Camargo contends that CALCRIM No. 375, which states evidence of uncharged
criminal acts could be considered true if proven by a preponderance of the evidence,
violated his federal constitutional right to have guilt established by proof beyond a
reasonable doubt. We disagree.
       The trial court instructed the jury with CALCRIM No. 375 as follows:

               “The People have presented evidence that the defendant committed
       other driving under the influence offenses that were not charged in this
       case. You may consider this evidence only if the People have proved by a
       preponderance of the evidence that the defendant in fact committed the
       uncharged offenses. [¶] Proof by a preponderance of the evidence is … a
       different burden of proof than proof beyond a reasonable doubt. A fact is
       proved by a preponderance of the evidence if you conclude that it is more
       likely than not that the fact is true. If the People have not met this burden,
       you must disregard this evidence entirely. [¶] If you decide that the
       defendant committed the uncharged offenses, you may, but are not required
       to, consider that evidence for the limited purpose of deciding whether or
       not the defendant knew his act was dangerous to human life when he
       allegedly acted in this case. [¶] In evaluating this evidence consider the
       similarity or lack of similarity between the uncharged offenses and acts and
       the charged offenses. [¶] 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. [¶] If you conclude that the
       defendant committed the uncharged offenses, that conclusion is only one
       factor to consider along with all the other evidence. It is not sufficient by
       itself to prove that the defendant is guilty of murder in the second degree.
       The People must still prove each charge beyond a reasonable doubt.”


                                            13.
       Camargo acknowledges that a similar argument was rejected by the Supreme
Court in People v. Carpenter (1997) 15 Cal.4th 312 (addressing CALJIC No. 2.50.1), but
argues that Carpenter is distinguishable. Here, as argued by Camargo, the instruction
was unnecessary in light of the stipulations at trial as to the truth of the uncharged acts.
Camargo argues that giving the instruction anyway confused the jury by needlessly
introducing the preponderance of the evidence standard into the case.
       We agree with Camargo that this instruction was unnecessary in light of the
stipulations at trial as to the truth of the uncharged acts. But we disagree that the
instruction confused the jury. The jury was instructed, pursuant to CALCRIM No. 200,
in relevant part, that “[s]ome of these instructions may not apply, depending on your
findings about the facts of the case.… After you have decided what the facts are, follow
the instructions that do apply to the facts as you find them.” Furthermore, while
CALCRIM No. 375, as given, authorized the jury to use the preponderance standard to
determine whether Camargo committed the uncharged offenses, it explicitly linked this
lesser standard of proof with the uncharged prior driving under the influence offenses and
reminded the jury that this evidence was not “sufficient by itself to prove that the
defendant is guilty of [m]urder in the [s]econd [d]egree. The People must still prove each
charge beyond a reasonable doubt.”
       Nothing in CALCRIM No. 375 authorized the jury to use a preponderance of the
evidence standard for anything other than the preliminary question of whether Camargo
committed the uncharged offenses. Viewing the instruction as a whole, it is unreasonable
to think the jury would have interpreted the instruction to authorize conviction of the
charged offense based on a lower standard than proof beyond a reasonable doubt. (See
People v. Reyes (2008) 160 Cal.App.4th 246, 252 [similar analysis applied to CALCRIM
No. 852, relating to evidence of prior uncharged acts of domestic violence].)
       The preponderance standard for uncharged offenses does not violate the state or
federal Constitution, does not reduce the prosecution’s burden of proof, and does not

                                             14.
violate due process. (People v. Carpenter, supra, 15 Cal.4th at pp. 380-383; see also
People v. Reliford (2003) 29 Cal.4th 1007, 1013-1016; People v. Johnson (2008) 164
Cal.App.4th 731, 738-740; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.) We
are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) We reject Camargo’s claim to the contrary.
   IV. CUMULATIVE ERROR
       Camargo contends finally that the cumulative impact of all of the above errors
deprived him of a fair trial. We have either rejected Camargo’s claims of error and/or
found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we
find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35
Cal.4th 514, 560.)
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                             Franson, J.
WE CONCUR:


 _____________________
Gomes, Acting P.J.


 _____________________
Poochigian, J.




                                            15.
