Filed 12/11/15




                      CERTIFIED FOR PARTIAL PUBLICATION*


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                      F067846
        Plaintiff and Respondent,
                                                            (Super. Ct. No. BF138106A)
                 v.

OSCAR JIMENEZ,                                                      OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. Eric J.
Bradshaw and John R. Brownlee, Judges.†
        Mark L. Christiansen, 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, Stephen G. Herndon and Peter
W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                           -ooOoo-


*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts III., V., VI., VII., VIII., and IX. of the
Discussion.
†      Judge Bradshaw presided on April 2, 2013; Judge Brownlee presided over all
other hearings pertinent to this appeal.
           On August 17, 2011, defendant Oscar Jimenez was indicted on two counts of
second degree murder (Pen. Code, § 187, subd. (a)1 [counts one-two]), two counts of
gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a) [counts three-four]),
and one count of driving with a suspended license (Veh. Code, § 14601.4, subd. (a)
[count five]).
           In connection with counts one through four, the indictment alleged defendant was
previously convicted of (1) first degree burglary—a qualifying strike under the “Three
Strikes” law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and a serious felony (§ 667,
subd. (a))—on or around March 9, 1992, for which he served time in prison (§ 667.5,
subd. (b)); (2) possessing a controlled substance on or around June 6, 2006, for which he
served time in prison (ibid.); (3) possessing a controlled substance on or around
October 27, 1998, for which he served time in prison (ibid.); (4) possessing a controlled
substance on or around March 1, 1996, for which he served time in prison (ibid.); and (5)
possessing a narcotic on or around April 14, 1989, for which he served time in prison
(ibid.).
           In connection with counts three and four, the indictment alleged defendant had
been convicted of driving under the influence (DUI) on May 10, 2002, and August 11,
2009, respectively. (§ 191.5, subd. (d).) As to count five, it alleged he was previously
convicted of (1) driving with a suspended license on or around April 10, 2006 (Veh.
Code, § 14601.2, subd. (d)(2)); and (2) driving with a suspended license on or around
August 11, 2009 (ibid.).
           On May 23, 2013, the jury convicted defendant on all counts and found true the
allegations of his earlier DUI convictions on counts three and four. In a bifurcated
proceeding, the trial court did not issue a finding as to the allegation of being convicted



1          Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.


                                                2.
of driving with a suspended license on or around August 11, 2009, on count five, but
found true all remaining allegations.
       On August 6, 2013, defendant was sentenced to 30 years to life, plus five years for
a prior serious felony conviction and four years for four prior prison terms,2 on count
one; 30 years to life, plus five years for a prior serious felony conviction and four years
for four prior prison terms (see ante, fn. 2), on count two, to be served consecutively; and
180 days in jail on count five, to be served concurrently. The trial court also imposed 30
years to life, plus five years for a prior serious felony conviction and four years for four
prior prison terms (see ante, fn. 2), on counts three and four, respectively, but stayed
execution of these sentences pursuant to section 654.
       On appeal, defendant contends the evidence did not establish he was under the
influence of a drug (counts three-four) or killed with malice aforethought (counts one-
two); claims the trial court erred by refusing to instruct the jury on unconsciousness,
denying his motion to suppress blood test results, and admitting into evidence a
detective’s opinion about his state of intoxication, other-crimes evidence, and his mug
shot profile; alleges various sentencing errors; and asks us to review the sealed reporter’s
transcript of the trial court’s April 2, 2013, in-camera hearing and determine whether the
trial court properly ruled on his motion for discovery pursuant to Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess).
       In the published portion of the opinion, we conclude substantial evidence
established defendant was under the influence of a drug, substantial evidence established
implied malice, and defendant’s blood test results were not subject to exclusion. In the
unpublished portion of the opinion, we conclude an instruction on unconsciousness was
unwarranted, the trial court did not abuse its discretion when it admitted a detective’s

2      A fifth prior prison term enhancement was stricken because the offense underlying
this enhancement—i.e., first degree burglary—was also the basis for the prior serious
felony enhancement.


                                              3.
opinion regarding defendant’s state of intoxication or when it admitted other-crimes
evidence, the admission of defendant’s mug shot profile did not constitute prejudicial
error, one sentencing error must be corrected, and the trial court did not abuse its
discretion when it determined certain peace officers’ records contained no discoverable
materials.
                                  STATEMENT OF FACTS
I.     Prosecution case.
       On April 26, 2011, at approximately 9:00 a.m., Maria Rocha heard a loud collision
while she was in her residence at 2701 Sierraglen Court in Bakersfield. Through a
bedroom window, she saw a gray truck—which had plowed through a fence—in her
backyard. Rocha’s son called 911. Meanwhile, Rocha entered the backyard and
observed defendant emerging from the driver’s side of the vehicle. As he ran westward
on Auburn Street, she warned, “Hey, don’t run. I’ve already called the cops.” Rocha
believed defendant “was trying to get away.”
       At 9:11 a.m., Detective Kevin Fidler arrived at the scene of the accident. He
spotted Albert Cichy lying near the truck, Annabelle Cichy lying on the northeastern
corner of Sierraglen Court and Auburn Street, defendant sitting on the curb close to
Annabelle,3 and an upended fire hydrant. After Fidler recruited bystanders to stabilize
the Cichys until the arrival of emergency medical services, he spoke to defendant.
       Defendant told Fidler he was driving eastbound on Auburn Street between 35 and
40 miles per hour when he was cut off by another vehicle, which forced him to swerve
and hit the fire hydrant and the Cichys. He was also “coming down off of speed.[4]”
Defendant then mentioned he had “blacked out” until he crashed into the hydrant. He


3       To avoid confusion, we identify individuals who share the same surname by their
first names. No disrespect is intended.
4      At trial, Fidler specified “speed” was “a common term for methamphetamine.”


                                             4.
admitted having a suspended driver’s license. When Fidler asked why the license was
suspended, defendant answered, “For a DUI.” Defendant “appeared nervous and jittery,”
“had an accelerated, mumbled speech,” and “show[ed] signs of bruxism,” i.e.,
“consistent” “clench[ing],” “twitch[ing],” and/or “thrust[ing of] the[] jaw ….” In view of
defendant’s remarks and actions, Fidler opined defendant was “impaired by
methamphetamine.”
       Officer Patrick Dillard, a vehicular accident reconstructionist, charted the truck’s
path of travel. The areas of impact, in sequence, included (1) the curb on the
northwestern corner of Auburn Street and Sierraglen Court; (2) a “No Parking Any
Time” sign; (3) the fire hydrant; (4) the Cichys; (5) the curb on the northeastern corner of
Auburn Street and Sierraglen Court; (6) the street name signs for Auburn Street and
Sierraglen Court; (7) a tree; and (8) the fence bordering Rocha’s backyard. Dillard did
not notice any skid marks or other evidence of braking.
       Officer Scott Lazenby inspected the truck and found no mechanical issues with the
steering mechanism, brakes, and tires. He surveyed the road and confirmed there were
no objects that would have prompted defendant to abruptly change direction. The
weather, which was clear and dry, was also excluded as a contributing factor. Inside the
pocket in the driver’s side door, Lazenby retrieved an eyeglass case, which was inscribed
with defendant’s last name and contained a glass pipe with methamphetamine residue.
       At the scene of the accident, emergency medical services measured defendant’s
heart rate twice at 9:33 a.m. and 9:41 a.m., respectively. In both instances, the rate was at
or below 90 beats per minute. Defendant was then transported to Kern Medical Center.
Officer Jeffrey Paglia, who was present during intake, heard a nurse ask defendant “why
he’s shaking” and defendant say “he was withdrawing from methamphetamine.” Dale
Robbins, a physician assistant, was informed of defendant’s “altered mental status”5 by

5      Robbins testified an altered mental status constituted “some disturbance in
orientation, either to person, place, time, or surroundings, which is indicative of either an

                                              5.
the paramedics. At approximately 9:50 a.m., Robbins evaluated defendant, who was
“alert,” “verbally responsive,” and “oriented to person, place, time, and surroundings ….”
Aside from a slightly elevated blood pressure, vital signs were normal. Defendant was
hydrated and his mouth was “normal.” In both eyes, he presented “small and mildly
reactive” pupils and nystagmus, i.e., “fluttering of the eye movements,” signifying an
injury to the central nervous system and/or intoxication. He also presented “twitching” of
the extremities and dysphasia, i.e., “difficulty speaking.” A computed tomography scan
of the brain was inconclusive. At 10:00 a.m., upon Paglia’s request, a nurse drew blood
from defendant’s right arm. Paglia had not asked defendant for consent.
       On April 28, 2011, an initial test of defendant’s blood sample at the Kern County
Crime Laboratory was positive for amphetamine and marijuana. On April 29, 2011, a
confirmatory test found 0.2 micrograms per milliliter (µg/ml) of amphetamine and
0.44 µg/ml of methamphetamine. Additional analysis on June 14, 2011, detected
2.0 nanograms per milliliter (ng/ml) of delta-9-tetrahydrocannabinol (THC), the “parent
compound in marijuana.” According to Thomas Sneath, the toxicologist who tested the
blood sample for marijuana, delta-9-THC is “only [in the circulatory system] for a few
hours” following ingestion.
       In the wake of the April 26, 2011, accident, Albert died due to multiple blunt force
injuries and Annabelle died due to complications stemming from blunt force trauma.
       At trial, the prosecutor indicated he would introduce evidence “of [defendant’s]
prior arrests or convictions … and things that he may have learned during the course of
those arrests and convictions.” The trial court preemptively instructed the jury:

              “During the trial certain evidence will be admitted for a limited
       purpose. You may consider that evidence only for that purpose and for no
       other. You may consider the evidence that [defendant] has allegedly been


injury to the central nervous system or intoxication with sometimes alcohol or
substance.”


                                            6.
previously arrested and charged with [DUI] for the limited purpose of
determining the following:

       “Number one, whether or not at the time he acted he knew his act
was dangerous to human life and he deliberately acted with conscious
disregard for human life. [¶] This is relevant to the implied malice counts
in Counts 1 and 2.

      “Number two, whether or not he acted with gross negligence in
Counts 3 and 4.

      “Number three, whether or not he suffered the alleged [DUI]
convictions as alleged in … section 191.5(d), allegations as to Counts 3 and
4.

       “And number four, whether or not he had a suspended or revoked
driver’s license in Count 5.

       “If you have a reasonable doubt that [defendant] learned from his
prior conduct that that conduct was dangerous to life, you must disregard
the evidence of that prior conduct.

      “You must determine whether [defendant] knew that his conduct
was dangerous to human life at the time of the present offense.

       “You may not consider any evidence of prior incidences of [DUI] as
evidence of [defendant’s] bad character, criminal record, or violation of any
laws.”
The parties agreed to the following stipulations:

       “On … June 8th, 2009, … [defendant’s blood] sample screened
positive for amphetamines and marijuana. The sample was not confirmed.
The sample was later destroyed after [defendant]’s 2009 court case had
concluded.

       “… [D]efendant was arrested in March of 1987 and convicted in
June of 1987 of … alcohol [DUI] in Pasadena, California. He received two
days in jail, three years probation, and his license was suspended.

       “… [D]efendant was arrested and convicted of … alcohol [DUI] in
Kern County in December of 1988. He was sentenced to 45 days in jail,
three years probation, and his license was suspended.




                                     7.
              “… [D]efendant was arrested and convicted of … alcohol [DUI],
       Vehicle Code [s]ection 23152(a), in Kern County in March of 2002. He
       received 30 days jail, three years probation, and his license was
       suspended.”
       Roderick Frye formerly directed WestCare California’s residential substance
abuse treatment program, which incorporated lectures, seminars, and video presentations
on the consequences of drug use in certain scenarios, e.g., ingesting methamphetamine
and driving. In 2008, defendant completed the program in approximately 90 days. Frye
testified an individual could not “go through that 90-day program and not have that idea
presented … that … methamphetamine [DUI] could result in somebody dying.”
       On June 4, 2009, at about 1:15 a.m., California Highway Patrol (CHP) Officer
Michael Phillips saw defendant nearly sideswipe another vehicle with his truck at an
intersection in Bakersfield. Phillips followed defendant—who “was weaving
consistently, going in and out of his lane”—and initiated a traffic stop. Defendant was
“extremely fidgety,” slurred his speech, displayed constricted pupils, and had a heart rate
of 104 beats per minute. He failed the field sobriety tests. Defendant admitted taking
methamphetamine “a couple of days prior.” Roughly 45 minutes later, CHP Officer
Kelly Walker, a drug recognition expert, evaluated defendant at Kern County Jail.
Defendant was “lethargic,” had “droopy” eyelids and a “slack” face, “struggl[ed] to stay
awake,” and spoke “quickly” and “quietly.” His pupils were 2.0 millimeters (mm) in
“normal room light,” 2.5 mm in “near darkness,” and 2.0 mm “with a pen light …
direct[ing] light in[to] his eye[s.]” Defendant’s heart rate fluctuated between 64 and 72
beats per minute. He also exhibited “a thick white coating on his tongue [and/]or in his
oral cavity” and injection marks “[i]n the bend of his right arm.”
       On August 11, 2009, defendant pleaded nolo contendere to drug DUI, inter alia.
Pursuant to Vehicle Code section 23593, subdivision (a), he received the following
judicial admonition:




                                             8.
       “You are hereby 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 drive while under the influence of
       alcohol or drugs, or both. If you continue to drive while under the
       influence of alcohol or drugs, or both, and, as a result of that driving,
       someone is killed, you can be charged with murder.” (Some capitalization
       omitted.)
       James Rabuse was defendant’s substance abuse counselor at Turning Point
Kennemer Center, where defendant participated in another residential substance abuse
treatment program from January 29, 2010, to July 23, 2010. The program addressed,
inter alia, “the possible legal ramifications stemming from … being a reckless driv[er] to
a driv[er] under the influence.” In response to a written question about whether his
substance abuse endangered the lives of others, defendant answered, “I’ve driven while
under the influence for starters.” He successfully completed the program in six months.
Rabuse “could not see any reason why [a person going through the program] wouldn’t be
able to understand” “that using a drug, [like] methamphetamine, and driving could result
in somebody dying.” On cross-examination, he testified a person “should” be able to
operate a motor vehicle “[e]ight to 12 hours … after the last ingestion of
[methamphetamine],” “even though the period of time where [the drug] shows up in the
blood might not have lapsed,” and he offered this advice in “one-on-ones” and “group
counseling.” On redirect examination, Rabuse conceded he did not know “what is a safe
amount of methamphetamine to have in your blood to drive,” adding “[i]t depends on the
individual and how much [he] ingested prior to.”
       Dr. Barry Logan, a forensic toxicologist, identified two phases of
methamphetamine intoxication. In the first phase, also known as, the “excited” phase,
the user is alert, energetic, and euphoric. Common signs include an elevated pulse and
blood pressure, dilated pupils, jumbled and/or accelerated speech, tics, twitching,
bruxism, and other fidgety behavior. In the second phase, also known as, the “crash” or
“withdrawal” phase, the methamphetamine has disseminated throughout the user’s body,


                                             9.
diluting the initial stimulative effects. As a result, the user—who had originally been
invigorated by the drug—experiences depression, fatigue, and sleepiness, cannot
concentrate, reacts slower, and craves further methamphetamine ingestion to “feel better
again.” The pulse and blood pressure return to normal and the pupils sometime
constrict.6 Marijuana is often consumed to offset the effects of the “crash” phase. Logan
added:

         “[I]t’s basically a continuum of effects. So you start with the excited phase
         or the initial intoxication phase, and then as those effects start to wear off,
         the effects of withdrawals start to appear. It’s not like you hit a switch and
         you go from one phase to the other. There’s some overlap in terms of the
         symptoms. [¶] … [¶] … As you start … to come down from the effects of
         the drugs, you still have some of your residual excitatory effects, but the
         adverse effects, the tiredness, the fatigue, the somnolence, these start to
         become more prominent. So … you can have both effects at the same
         time.”
         In a study of methamphetamine DUI cases, Logan found the methamphetamine
concentration ranged between 0.05 and 2.5 µg/ml. Defendant’s blood sample contained
0.44 µg/ml of the drug, which was “consistent with abuse” rather than “therapeutic use.”
Logan then explained how defendant’s methamphetamine concentration at the time of the
blood draw was a “pretty good estimate of what it was at the time of driving”:




6        Regarding pupillary response, Logan detailed:
         “[T]he kind of pupillary restriction you see with opiates is … pupils
         become constricted or very small, maybe as small as [1.0 mm] and they
         become fixed so that when you change the lighting conditions, you cover
         someone’s eyes, and when your pupils would normally open, your pupils
         don’t change at all.
                 “In cases of people on the downside of methamphetamine, when you
         change lighting conditions like that, their pupils typically are a little more
         reactive to light. So that’s one of the ways … [to] distinguish people on
         illegal narcotics, analgesics [from] people on the downside of
         methamphetamine or stimulant use.”


                                               10.
       “[D]rugs have a property called half[-]life.… [I]f you have a concentration
       of a drug in your blood right now that’s [100], and the half[-]life of a drug
       is in an hour, then an hour later, instead of having [100], you would have
       50. [¶] And then an hour [after] that, that 50 would have again fallen in
       half to 25. [¶] So over time, the drug concentration is going to decline.

              “The half[-]life o[f] methamphetamine … varies from person to
       person. It’s between probably eight and 12 hours. [¶] So [after] eight to
       12 hours … the concentration would fall by half. [¶] So over a period of
       an hour, the amount of change in the blood concentration would be quite
       small.
       Based on percipient witnesses’ statements about defendant’s appearance and
conduct at the crime scene (i.e., “excited, accelerated speech,” “fidgety,”) and hospital
(i.e., “muscle tremors and shakes”), defendant’s abnormal driving behavior (i.e., “los[ing]
control of his vehicle, cross[ing] several lanes of traffic, mount[ing] a curb, hit[ting] a
number of fixed objects with no apparent effort to brake or to prevent hitting the[m],”
“collid[ing] with the victims”), defendant’s admission he was “coming down from
speed,” medical records, and the blood test results, Logan opined defendant fell asleep at
the wheel due to methamphetamine withdrawal on April 26, 2011. He reiterated
defendant’s impairment was caused by methamphetamine intoxication:

       “[M]y view of methamphetamine intoxication is that it doesn’t stop with
       somebody as soon as somebody reaches their peak and enters the downside.
       Intoxication is … the effect on an organism, a cell, a human being, an
       animal, as a result or consequence of their ingestion of a drug or alcohol.
       [¶] … [¶] So … that process [of] somebody … reaching their peak,
       start[ing] to come down, all of that, in my view, would be intoxication.”
II.    Defense case.
       Teresa Jimenez testified defendant, her husband, “sle[pt] a full night’s sleep” on
each of the three nights preceding the morning of April 26, 2011. On the night of
April 25, 2011, he “seemed normal” at bedtime. The following morning, defendant was
“normal,” “didn’t seem[] tired,” and “wasn’t” “high.” On cross-examination, Teresa
acknowledged defendant had used methamphetamine for years, had prior DUI



                                              11.
convictions, and attended various programs for substance abuse treatment, but rarely
observed him in an intoxicated state.
       Vincent Jimenez woke defendant, his father, at around 7:45 a.m. on April 26,
2011, to get a ride to the school bus stop. According to Vincent, who had observed
defendant in an intoxicated state,7 defendant was “normal.” They left their residence at
6009 Fairfax Road at around 7:55 a.m. En route to the bus stop on the corner of Auburn
Street and Fairfax Road, defendant and Vincent talked about the latter’s girlfriend
troubles and physical training for the Marine Corps. Defendant drove and spoke
“normal[ly].” His eyes were also “normal.” On cross-examination, Vincent
acknowledged defendant had “a problem with methamphetamine.” In addition, he
admitted telling either defense counsel or defense counsel’s investigator he believed
defendant was under the influence on the night of April 25, 2011, when he and defendant
were “fixing a bumper on the truck” together.
       Norma Jimenez saw defendant, her brother, at her residence near Bakersfield
Memorial Hospital at or around 8:10 a.m. on April 26, 2011. He had visited to perform
automotive work. However, Norma postponed the appointment because she needed to
leave for her community college class by 8:30 a.m. Defendant was “acting fine,” but
appeared “somewhat tired.” He stayed at Norma’s home for five minutes at most.
       Arthur Espinoza knew defendant through Maylean Jimenez, defendant’s eldest
daughter. On April 26, 2011, at or around 8:15 a.m., he encountered defendant in the
parking lot of his apartment complex at 3901 Q Street. Defendant “persisten[tly]” asked
Espinoza to “sell a camera for him,” but Espinoza was busy. According to Espinoza,
who formerly used methamphetamine and recognized symptoms of methamphetamine
intoxication, defendant was “clean and sober.”


7      Vincent specified defendant would not sleep for several days, exhibit dilated
pupils, have a short attention span, and hum songs.


                                            12.
       William Sommers—a retired sergeant in the Ontario Police Department,
experienced traffic accident investigator and reconstructionist, and drug recognition
expert—reviewed the police and medical records and concluded defendant’s driving was
not related “in any way to the use of drugs.” He testified:

               “Since [methamphetamine]’s a central nervous system stimulant,
       when the person is under the influence of it, everything in the central
       nervous system is speeded up. Body temperature. There may be
       piloerection…. [¶] These things won’t be present to a large degree or at all
       if a person is on the downhill side of it …. [¶] … [¶]

               “… I looked at the clinical signs. I looked at the fact that
       everywhere I looked it said normal, normal, normal. Everywhere you went,
       to the blood pressure, his pulse, all were within normal limits. Even when
       he was admitted to the hospital his pulse was … in normal limits.”
Sommers also inspected defendant’s truck, which had a rear-wheel anti-lock braking
system. Consequently, he expected front-wheel skid marks at the accident scene. The
absence of such marks suggested defendant either (1) applied the brakes “to the point just
short of lock-up”; or (2) did not apply the brakes at all. Based on a mathematical
formula, Sommers determined defendant drove between 31 and 49 miles per hour.
       On cross-examination, Sommers conceded the blood test results revealed “a non-
therapeutic value of … methamphetamine.” He disregarded defendant’s admission of
“coming down from speed” because “[it]’s not a clinical sign.” Sommers did not recall
Robbins’ notes about defendant’s twitching and dysphasia. However, such symptoms
could be attributed to defendant “[j]ust being excited, having been involved in a traffic
collision ….” Additionally, bruxism may be “one of the symptoms of methamphetamine
use, but … is not in and of itself an indicator that [one is] under the influence of it.” As
for the reason behind defendant’s erratic driving, Sommers remarked:

       “There are no clinical signs to show that [defendant] was impaired. I can’t
       say that he was under the influence of methamphetamine. I can say that he
       was under the influence of tired. Now, I can’t tell you why he was tired,



                                             13.
      but I can tell you that the clinical signs … do not reflect methamphetamine
      use or any other central nervous system stimulant. [¶] … [¶]

             “A person who is under the influence of a central nervous system
      stimulant is not going to go to sleep. They are … stimulated. Heart rate[’]s
      up, breathing’s up, temperature’s up, hydration is down. [¶] There are a lot
      of things that are going on, but one of them is not sleeping.”
      Felix D’Amico—a retired sergeant in the San Bernardino County Sheriff’s Office
and drug recognition expert—testified methamphetamine “only lasts six to eight hours
normally,” but “increase[s] … to maybe 12 hours” if smoked. He reviewed the police
and medical records8 and opined defendant was not under the influence of
methamphetamine or any stimulant derivative at the time of the accident:

      “[T]he behavioral statements that were made about [defendant] could have
      matched methamphetamine or amphetamine [use], [e.g.,] being excitable,
      nervous, things like that, [but the observations were made] right after a
      major accident, so I kind of have to discount th[em]. I want to get more
      into clinical things. [¶] … [¶]

             “… [I]f he was actually under the influence, [his pupils] should
      [have] be[en] somewhere between [7.0] and [9.0] m[m], and the light
      [should] not [have] affect[ed] it…. [¶] The drug … take[s] over the pupil
      size and it will not move. [¶] … [¶] … It’s a dead give-away right there.
      The only two drugs that we know [will do that] are stimulants and
      hallucinogenics ….”

      “[R]oughly between nine o’clock and whenever he was transferred to the
      hospital, they took [multiple] pulses on him. And he was in the high
      normal range…. [¶] … [U]nder the influence [of methamphetamine and
      stimulant drugs,] you’re going to be way up over 120 [beats per minute].
      [¶] … [¶]

              “[Methamphetamine] is … basically like taking cold medicine.…
      [I]t dehydrates you. It dries you up. [¶] … [W]hen you get dehydrated,
      your tongue swells up and you have a white coating on the tongue …. If
      you have a white coating on your tongue, that’s kind of a dead give away.



8     D’Amico “[s]uperficially” scanned Dillard’s findings because he was “not a traffic
accident reconstructionist.”


                                          14.
              “But here again, I read records where trained medical personnel said
       he was hydrated. Not dehydrated, hydrated. So that’s another thing that
       leads me to believe that he was not under the influence of the classic sense
       of being impaired at that time.”
According to D’Amico, the blood test results merely showed “methamphetamine had
been in [defendant’s] system in the past.” He maintained “it [was absolutely] possible to
have methamphetamine still lingering in [one’s] blood and not be under the influence of
methamphetamine.” Also, “it [was not] possible to look at a level of …
methamphetamine in a person’s blood and extrapolate retroactively when … he last used
methamphetamine.”
       On cross-examination, D’Amico testified defendant’s admissions of “coming
down from speed” and “going … through meth[amphetamine] withdrawals” did not
change his opinion. He conceded twitching and jaw-loosening movements could be
symptomatic of methamphetamine use. The prosecutor hypothetically asked D’Amico
whether a person who “claimed to be coming down from methamphetamine use” and
“going through methamphetamine withdrawals,” “ha[d] trouble speaking,” “was
excitable[ and] nervous,” “ha[d] bruxism,” “had a positive drug screen for both
methamphetamine and marijuana, [with] methamphetamine in … an abusive level
beyond a therapeutic dose,” “drove on a sidewalk,” struck “street sign[s], a fire hydrant,
two people, … [and] trees,” and “crashed into a back yard without ever … braking”
would be “too impaired to be driving safely.” D’Amico responded:

       “Obviously there’s impairment there. There’s bad driving with a terrible
       result. There’s a lot of behavioral things here. Shaking, speaking.
       Bruxism …. [A p]ositive … blood test means it was in his system. He told
       someone that he was coming down…. I don’t know if you believe that or
       not believe that. [¶] But … the clinical [signs] are not there. There’s no
       clinical signs to show that he was under the influence at the time. And
       that’s all I’m trying to say. No doubt, it was bad driving. I have no idea
       why.”
       Dr. Todd Zorick, a psychiatrist specializing in addictive disorders, testified “the
criteria for methamphetamine intoxication are entirely clinical, [i.e.], observations and

                                             15.
self report[ing].” Blood test results are not considered “because there’s no strict …, one-
to-one correlation between the level of a blood test and someone’s level of
[methamphetamine] intoxication.” To illustrate, Zorick compared methamphetamine
with alcohol:

       “[A]lcohol is metabolized very, very rapidly, so it’s very clear when
       someone has a certain level of alcohol in their blood. That very closely
       correlates with [his] behavioral performance. And then the next day
       alcohol is completely out of [his] system and [he’s] back to normal.

               “Methamphetamine and most other drugs of abuse have much longer
       half[-]lives[9] and tend to stay around … in the body a lot longer. [¶] So
       even though [users] might not be under the acute influence of that
       substance, they wouldn’t exhibit the signs and symptoms, they continue to
       have body fluid testing which will reveal the presence of recent drug use or
       sometimes even more long lasting drug use.”
       Zorick reviewed the police and medical records and concluded “it’s unlikely that
[defendant] was intoxicated with methamphetamine at the time of the accident.” He
clarified:

       “What I discovered was that as few as 25 minutes after the incident,
       [defendant’s] blood pressure and pulse were reported to be in the normal
       range …. [¶] And that was consistent … throughout the course of his
       hospitalization that day. [¶] … [¶]

              “… [R]eports from the emergency medical service and from the
       hospital where he was evaluated … indicated that he had normal reflexes,
       that he had no pupillary dilation, that he didn’t seem to have any other
       abnormal physical signs that would indicate that he was intoxicated with
       methamphetamine. [¶] … [¶]

              “So to me it’s curious that, you know, he didn’t have any sort of
       response over the extended period of time that he was evaluated during this
       day that would indicate that he was intoxicated with methamphetamine.
       [¶] … [¶]


9      Zorick testified the average half-life of methamphetamine is 12 hours, after which
“the phase of intoxication would be over ….”


                                            16.
              “… [I]f he had been intoxicated with methamphetamine, let’s say he
       had used methamphetamine within the last two hours or so prior to the
       accident, that should have been reflected in having elevated blood pressure,
       an elevated pulse rate, having dilated pupils, perhaps … other behavioral
       abnormalities, an abnormal mood, having some physical symptoms, for
       example, anxiety, nausea or having recent weight loss, that would have
       indicated that he was likely intoxicated with methamphetamine.”
As for the reason behind defendant’s erratic driving, Zorick—without offering a “firm
diagnosis”—surmised the “likely cause” was “falling asleep.” Sleepiness could not be
attributed to methamphetamine intoxication, however, since a person under the influence
of methamphetamine would be “wide awake.”
       On cross-examination, Zorick listed symptoms of methamphetamine withdrawal,
including fatigue, hypersomnia, loss of concentration, dysphoria, depression, and anxiety.
Even though he “did not diagnos[e] or feel that [defendant] met criteria for
methamphetamine withdrawal,” he still concluded “the weight of all the evidence …
makes it more likely than not that [defendant] fell asleep while driving the morning of
April 26th, 2011, while experiencing fatigue and sleepiness of methamphetamine
withdrawal[,] resulting in the crash.”
       Dr. David Krauss, a cognitive neuroscientist, testified a warning “needs to change
the [perceiver’s] behavior” to be effective. Factors that “increase the likelihood that a
warning will work” relate to either “the warning itself” or “the person receiving that
information.” Krauss scrutinized the judicial admonition read to defendant on August 11,
2009. (See ante, at pp. 8-9.) He deemed the admonition ineffective because, inter alia,
(1) it did not provide “new” information (i.e., defendant “already … knew what the
hazard was” because he was in a courtroom); (2) it did not specifically address “driving
many hours after ingesting narcotics”; and (3) defendant was already inclined to
disregard it because he “ha[d] driven many times under the same circumstance without a
negative outcome” and “perceive[d] that the next time [wa]s going to be safe.”




                                            17.
       On the other hand, Krauss believed Rabuse’s advice (see ante, at p. 9) was more
effective than the judicial admonition on the basis of “source credibility”:

              “If you’re given just a passive warning or a passive admonition, … if
       you’re reading sort of a []rote instruction that is a generic that’s given to
       every person that passes through the court under these conditions, that’s
       going to have some level of merit associated with it.

              “If you’re then in a drug rehab facility where you’re presumably
       working with people who are trying to better your situation, are trying to
       make you write specifically not to do what got you in there, and they give
       you an instruction[, t]hat instruction that is direct[ed] solely to you by
       somebody who is specifically there to make sure you don’t do what you did
       again is likely going to carry a lot more weight.”
                                       DISCUSSION

I.     Substantial evidence established defendant was under the influence of
       methamphetamine.
       a. Standard of review.
       “To determine the sufficiency of the evidence to support a conviction, we review
the entire record in the light most favorable to the prosecution to determine whether it
contains [substantial] evidence that is reasonable, credible and of solid value, from which
a rational trier of fact could find that the elements of the crime were established beyond a
reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We
“presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755 (Redmond).)
“We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we
merely ask whether ‘“any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” [Citation.]’ [Citation.]” (Tripp, supra, at p. 955,
italics omitted.)
       “This standard of review … applies to circumstantial evidence. [Citation.] If the
circumstances, plus all the logical inferences the jury might have drawn from them,
reasonably justify the jury’s findings, our opinion that the circumstances might also

                                            18.
reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment. [Citations.]” (Tripp, supra, 151 Cal.App.4th at p. 955.)
       “Before the judgment of the trial court can be set aside for insufficiency of the
evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis
what[so]ever is there sufficient substantial evidence to support it.” (Redmond, supra, 71
Cal.2d at p. 755.) “‘Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the trial judge
or jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee
(2011) 51 Cal.4th 620, 632.)
       b. Analysis.
       The record indisputably shows that on the morning of April 26, 2011, defendant
lost control of his truck while driving eastbound on Auburn Street, veered toward Auburn
Street and Sierraglen Court, and—without braking— struck Albert and Annabelle as well
as several fixed, inanimate objects, e.g., a fire hydrant, tree, fence, and various street and
traffic signs. The truck had no mechanical issues, and external factors such as road
debris and the weather did not play a role in the accident. On appeal, defendant concedes
he fell asleep at the wheel and ingested methamphetamine “a day to three days earlier.”
Nonetheless, he contends “there was no substantial evidence of [methamphetamine]
intoxication while driving.” We disagree.
       “Gross vehicular manslaughter while intoxicated is the unlawful killing of a
human being without malice aforethought, in the driving of a vehicle, where the driving
was in violation of [s]ection[s] … 23152 [DUI] or 23153 [DUI and causing bodily injury
to another person] of the Vehicle Code, and the killing was either the proximate result of
the commission of an unlawful act, not amounting to a felony, and with gross negligence,



                                              19.
or the proximate result of the commission of a lawful act that might produce death, in an
unlawful manner, and with gross negligence.” (§ 191.5, subd. (a).)
       “A person is under the influence [of methamphetamine] … when, as a result of
using methamphetamine, his physical or mental abilities are impaired to such a degree
that he no longer has the ability to drive his vehicle with the caution characteristic of a
sober person of ordinary prudence under the same or similar circumstances.” (People v.
Bui (2001) 86 Cal.App.4th 1187, 1194.) “Whether [a] defendant was ‘under the
influence’ [i]s a question of fact for the jury to determine from all the proven
circumstances of the case.” (Ibid.)
       We conclude any rational jury could find—beyond a reasonable doubt—defendant
was under the influence of methamphetamine while driving on April 26, 2011. The
record—viewed in the light most favorable to the prosecution—shows he had smoked the
drug at some point before the accident. Vincent, defendant’s son, recognized alertness
and dilated pupils, inter alia, as signs of methamphetamine use. Expert witnesses for the
prosecution and the defense corroborated these physical traits are such indicia.
Vincent—proven to be acquainted with the aforementioned symptoms—believed
defendant was in a state of intoxication while they were repairing the truck’s bumper on
the night of April 25, 2011. A subsequent search of this vehicle uncovered defendant’s
glass pipe, which contained methamphetamine residue.
       On April 26, 2011, less than an hour before the accident, defendant was
“somewhat tired.” Approximately 10 minutes after the accident, he was “nervous and
jittery,” “had an accelerated, mumbled speech,” “show[ed] signs of bruxism,” and
confessed to a detective he had “blacked out” and was “coming down off of speed.”
Defendant’s heart rate at the scene was normal. Later, at the hospital, he was seen
“shaking,” which he attributed to “withdrawing from methamphetamine.” During the
physician assistant’s evaluation, defendant presented “small and mildly reactive” pupils,
“twitching” of the extremities, and “difficulty speaking,” but otherwise exhibited normal

                                             20.
vital signs. According to Logan, a forensic toxicologist, defendant’s accelerated speech,
twitching, bruxism, and other fidgety behavior were indicative of the “excited” phase of
methamphetamine intoxication while his fatigue, mildly reactive pupils, and normal vital
signs were indicative of the “crash” or “withdrawal” phase. Logan testified these phases
constitute a “continuum” rather than discrete intervals; thus, overlapping symptoms are
not unusual.
       Testing of defendant’s blood sample—taken within an hour of the accident—
revealed a methamphetamine concentration of 0.44 µg/ml. This amount, which was
“non-therapeutic” and “consistent with abuse,” fell within the 0.05-to-2.5 µg/ml range
observed by Logan in a study of methamphetamine DUI cases. Also, given the drug’s
eight- to12-hour half-life, 0.44 µg/ml was a “pretty good estimate” of defendant’s
methamphetamine concentration at the time of the accident. Testing also revealed
2.0 ng/ml of delta-9-THC, the principal ingredient in marijuana that only remains in the
circulatory system for “a few hours” after consumption. Logan pointed out marijuana is
often taken to counteract the adverse effects of methamphetamine withdrawal.
       In sum, the night before the accident, defendant—who had smoked a non-
therapeutic amount of methamphetamine—was in the first or “excited” phase of
intoxication. By the morning of April 26, 2011, he began to exhibit symptoms of the
second or “crash”/“withdrawal” phase. Even so, defendant chose to drive his truck.
Ultimately, he fell asleep at the wheel, lost control of his vehicle, and ran over the
Cichys. Both Logan and Zorick, a psychiatrist specializing in addictive disorders,
confirmed sleepiness is a symptom of methamphetamine withdrawal. Defendant
experienced sleepiness because he ingested methamphetamine in the first place. Hence,
“as a result of using methamphetamine” (People v. Bui, supra, 86 Cal.App.4th at p. 1194,
italics added), his “physical or mental abilities [we]re impaired to such a degree that he
no longer ha[d] the ability to drive his vehicle with the caution characteristic of a sober



                                             21.
person of ordinary prudence under the same or similar circumstances” (ibid.). (Cf.
People v. Mathson (2012) 210 Cal.App.4th 1297 [prescription sleep drug DUI].)
       On appeal, defendant argues he can only be convicted of methamphetamine DUI if
his driving impairment stemmed from “the drug itself … actively influencing the body
….” (Italics added.) In the context of this case, he is likely claiming he cannot be
convicted of methamphetamine DUI because his driving impairment, i.e., sleepiness, was
induced by withdrawal. As supporting authority, defendant cites the following excerpt
from People v. Canty (2004) 32 Cal.4th 1266, 1278 (Canty), italics omitted:

       “[F]or a defendant to be guilty of driving while under the influence of drugs
       …, ‘“the … drug(s) must have so far affected the nervous system, the brain,
       or muscles [of the individual] as to impair to an appreciable degree the
       ability to operate a vehicle in a manner like that of an ordinarily prudent
       and cautious person in full possession of his faculties. [Citations.]”’
       [Citations.]”
       To the extent defendant suggests Canty categorically prohibits drug DUI
convictions where the driver’s impairment was brought about by drug withdrawal, we
disagree. In that case, the defendant—who pleaded guilty to transporting
methamphetamine, a felony, and methamphetamine DUI, a misdemeanor—asked the trial
court to be placed on probation and diverted to a drug treatment program pursuant to the
Substance Abuse and Crime Prevention Act of 2000. (Canty, supra, 32 Cal.4th at
pp. 1272-1274.) Under this law, an offender is eligible for probation and diversion to
such a program if he or she has been convicted of a “‘nonviolent drug possession
offense,’” e.g., “‘being under the influence of a controlled substance’” (id. at pp. 1272-
1273, 1275), but “ineligible … if he or she has been ‘convicted in the same proceeding of
a misdemeanor not related to the use of drugs’” (id. at p. 1273, italics omitted). The trial
court rejected the defendant’s request because her methamphetamine DUI was a
“‘misdemeanor not related to the use of drugs’” and the appellate court affirmed. (Id. at
pp. 1274-1275.)



                                             22.
       On appeal before the California Supreme Court, the defendant argued a DUI
misdemeanor “should be equated with” the crime of “being under the influence of drugs”
because “use of drugs is integral to each offense.” (Canty, supra, 32 Cal.4th at p. 1278,
italics omitted.) In rejecting this argument, California Supreme Court emphasized three
significant differences between being under the influence of drugs and driving while
under the influence of drugs. First, whereas a person can be convicted of the former
merely “by being in that state in any detectable manner” (ibid.), he or she can only be
convicted of the latter if the drug “‘“so far affected [his or her] nervous system, the brain,
or muscles … as to impair to an appreciable degree the ability to operate a vehicle in a
manner like that of an ordinarily prudent and cautious person in full possession of his
faculties”’” (ibid., italics omitted). Second, whereas a simple drug-use misdemeanor
focuses on “the individual offender’s own private involvement with the proscribed
substance” (id. at p. 1279), a DUI misdemeanor “primarily is concerned not with the
offender’s use of the proscribed substance, but with his or her use of a motor vehicle”
(ibid.). Third, whereas the Legislature intended to “protect the user from the
consequences … of his or her own conduct” in proscribing being under the influence
(ibid., italics omitted), it intended to “protect the public and guard against the threat of
injury to others” in proscribing DUI (ibid., italics omitted). The appellate court’s
judgment was affirmed. (Id. at p. 1286.)
       At most, Canty—for purposes of the Substance Abuse and Crime Prevention Act
of 2000—differentiated between two drug-related misdemeanors on the bases of degree
of impairment and public policy. Canty never intimated an offender cannot be convicted
of drug DUI if his or her driving impairment stemmed from drug withdrawal.
Furthermore, we are unwilling to countenance this proposition in the instant case.
Substantial evidence established defendant smoked methamphetamine and subsequently
underwent withdrawal, resulting in somnolence that impaired his driving. We cannot



                                              23.
overlook the fact defendant endured the effects of methamphetamine withdrawal—
namely, sleepiness—precisely because he had used methamphetamine.10

II.    Substantial evidence established implied malice.
       a. Standard of review. (See ante, at pp. 18-19.)
       b. Analysis.
       “Second degree murder is defined as the unlawful killing of a human being with
malice aforethought, but without the additional elements—i.e., willfulness,
premeditation, and deliberation—that would support a conviction of first degree murder.”
(People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, italics omitted; accord, People v.
Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697 (Costa).) “Malice may be
either express or implied.” (People v. Lasko (2000) 23 Cal.4th 101, 107.) It is express
“when there is manifested a deliberate intention unlawfully to take away the life of a
fellow creature.” (§ 188.) It is implied “when the killing results from an intentional act,
the natural consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his [or her] conduct endangers the life of another
and who acts with conscious disregard for life.” (People v. Dellinger (1989) 49 Cal.3d
1212, 1215; accord, Costa, supra, at p. 697.)
       “Implied malice is determined by examining the defendant’s subjective mental
state to see if he or she actually appreciated the risk of his or her actions.” (Costa, supra,
183 Cal.App.4th at p. 697.) “It is not enough that a reasonable person would have been
aware of the risk.” (People v. Moore (2010) 187 Cal.App.4th 937, 941; see People v.
Olivas (1985) 172 Cal.App.3d 984, 988 [“[T]he state of mind of a person who acts with
conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don’t

10     Defendant curiously—and fallaciously—insinuates this disposition would be akin
to imposing culpability on a driver “who voluntarily ingested methamphetamine,” “had it
wear off until it had no direct adverse effect on driving,” and “had an accident due to a
heart attack causing a blackout, not due to methamphetamine.”


                                             24.
care if someone is hurt or killed.’ The state of mind of the person who acts with
conscious indifference to the consequences is simply, ‘I don’t care what happens.’”].) “It
is unnecessary that implied malice be proven by an admission or other direct evidence of
the defendant’s mental state; like all other elements of a crime, implied malice may be
proven by circumstantial evidence.” (Costa, supra, at p. 697; see People v. Nieto Benitez,
supra, 4 Cal.4th at p. 110 [“Even if the act results in a death that is accidental, … the
circumstances surrounding the act may evince implied malice.”].)
       Here, substantial evidence established implied malice. The record—viewed in the
light most favorable to the prosecution—shows defendant was previously convicted of
alcohol DUI in 1987, 1988, and 2002. In 2009, after he nearly sideswiped another
vehicle with his truck, he displayed symptoms suggestive of both the “excited” and
“crash” phases of methamphetamine intoxication and preliminarily tested positive for
amphetamine and marijuana, the latter of which is often taken to offset the adverse
effects of methamphetamine withdrawal. Defendant subsequently pleaded nolo
contendere to drug DUI and received a judicial admonition pursuant to Vehicle Code
section 23593, subdivision (a), which warned: (1) “being under the influence of alcohol
or drugs, or both, impairs [the] ability to safely operate a motor vehicle”; (2) “it is
extremely dangerous to human life to drive while under the influence of alcohol or drugs,
or both”; and (3) “[i]f [he] continue[s] to drive while under the influence of alcohol or
drugs, or both, and, as a result of that driving, someone is killed, [he] can be charged with
murder.”11 (Some capitalization omitted.) Moreover, in 2008 and 2010, defendant
completed two different substance abuse treatment programs, both of which addressed


11     Defendant harps on the wording of the admonition, stressing it “contained no
explicit material based upon some phase of withdrawal ….” Interestingly, Krauss—the
cognitive neuroscientist testifying for the defense—seemed to hint at the futility of
editing this wording, having attested to defendant’s penchant to ignore such caveats.
(See ante, at p. 17.)


                                              25.
the potentially fatal consequences of drug DUI. Indeed, in the course of the 2010
program, defendant acknowledged he endangered the lives of others by driving while
under the influence.
       Yet, despite several prior brushes with the law, a near-collision in 2009, a
straightforward judicial admonition, stints in two separate substance abuse treatment
programs, his awareness of withdrawal effects, and his acknowledgement of the risks of
DUI, defendant smoked methamphetamine sometime before April 26, 2011, experienced
withdrawal on the morning of April 26, 2011, and—with a license revoked on account of
his prior DUI conviction—chose to drive anyway. While driving, he succumbed to
sleepiness—a symptom of withdrawal—and killed two pedestrians. Any rational jury
could find—beyond a reasonable doubt—defendant knew his impaired driving
endangered the lives of others, but acted “with conscious disregard for life.” (People v.
Dellinger, supra, 49 Cal.3d at p. 1215; accord, Costa, supra, 183 Cal.App.4th at p. 697.)
       On appeal, defendant insists he was advised by Rabuse, his former substance
abuse counselor, “th[at] danger did not exist if he did not use methamphetamine for eight
to [12] hours before driving,” which essentially “mooted” the judicial admonition.
(Italics added.) We are not compelled to accept his self-serving interpretation of
Rabuse’s testimony in light of our obligation as an appellate court to view the record “in
the light most favorable to the prosecution” (Tripp, supra, 151 Cal.App.4th at p. 955) and
“presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence” (Redmond, supra, 71 Cal.2d at p. 755). On cross-
examination, Rabuse testified he informed multiple patients—not just defendant—in
“one-on-ones” and “group counseling” that a person “should” be able to operate a motor
vehicle “[e]ight to 12 hours … after the last ingestion of [methamphetamine].” On
redirect examination, however, he conceded his statement was not intended to be a hard-
and-fast rule and was conditioned on both the individual and the amount of
methamphetamine consumed beforehand. It is difficult to envisage how a trier of fact

                                            26.
could construe Rabuse’s advice as positively guaranteeing a methamphetamine user will
drive unimpaired so long as he or she waits eight to 12 hours after ingestion, irrespective
of the user’s individualized response and the amount of the drug actually taken. It is
equally difficult to envisage how such advice “moots” the substantial evidence of
defendant’s implied malice.

III.   An instruction on unconsciousness was unwarranted.*
       a. Background.
       After the parties rested, defense counsel asked the trial court to give CALCRIM
No. 3425, an instruction on unconsciousness.12 The court denied the request on the basis
that “[u]nconsciousness due to voluntary intoxication” “is not a defense to a general
intent crime” or “murder,” inter alia.
       b. Standard of review.
       “Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that … is … predominantly legal. As

*      See footnote, ante, page 1.
12     CALCRIM No. 3425 reads:
       “The defendant is not guilty of _______ <insert crime[s]> if (he/she) acted
       while unconscious. Someone is unconscious when he or she is not
       conscious of his or her actions. [Someone may be unconscious even
       though able to move.]
       “Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic
       seizure[,]/ [or] involuntary intoxication[,]/ [or] _______ <insert a similar
       condition>).
       “[The defense of unconsciousness may not be based on voluntary
       intoxication.]
       “The People must prove beyond a reasonable doubt that the defendant was
       conscious when (he/she) acted. If there is proof beyond a reasonable doubt
       that the defendant acted as if (he/she) were conscious, you should conclude
       that (he/she) was conscious, unless based on all the evidence, you have a
       reasonable doubt that (he/she) was conscious, in which case you must find
       (him/her) not guilty.”


                                            27.
such, it should be examined without deference.” (People v. Waidla (2000) 22 Cal.4th
690, 733; see People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759 [“A claim of
instructional error is reviewed de novo.”].)
       c. Analysis.
       “In a criminal trial, the court must give an instruction requested by a party if the
instruction correctly states the law and relates to a material question upon which there is
evidence substantial enough to merit consideration.” (People v. Barajas (2004) 120
Cal.App.4th 787, 791; see §§ 1093, subd. (f), 1127.) “Evidence is substantial if a
reasonable jury could find the existence of the particular facts underlying the instruction.”
(People v. Lee (2005) 131 Cal.App.4th 1413, 1426; accord, People v. Romo (1990) 220
Cal.App.3d 514, 517.) “‘“In evaluating the evidence to determine whether a requested
instruction should be given, the trial court should not measure its substantiality by
weighing the credibility [of the witnesses] …. Doubts as to the sufficiency of the
evidence to warrant instructions should be resolved in favor of the accused. [Citations.]”
[Citation.]’ [Citation.]” (People v. Tufunga (1999) 21 Cal.4th 935, 944.) “Even so, the
test is not whether any evidence is presented, no matter how weak.” (People v. Petznick
(2003) 114 Cal.App.4th 663, 677.) Where evidence is “‘minimal and insubstantial,’” the
court need not give the requested instruction. (People v. Lee, supra, at p. 1426.)
       “Unconsciousness, if not induced by voluntary intoxication, is a complete defense
to a criminal charge.” (People v. Halvorsen (2007) 42 Cal.4th 379, 417, citing § 26, class
Four; see § 29.4, subd. (c) [“Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor, drug, or other
substance.”].) Correspondingly, “‘“[i]f the state of unconsciousness is caused by
voluntary intoxication … it is not a complete defense.” [Citation.]’ [Citation.]” (People
v. James (2015) 238 Cal.App.4th 794, 805; see § 29.4, subd. (a) [“No act committed by a
person while in a state of voluntary intoxication is less criminal by reason of his or her
having been in that condition.”].) “Evidence of voluntary intoxication is admissible

                                               28.
solely on the issue of whether or not the defendant actually formed a required specific
intent, or, when charged with murder, whether the defendant premeditated, deliberated, or
harbored express malice aforethought” (§ 29.4, subd. (b), italics added) and “shall not be
admitted to negate the capacity to form [other] mental states for the crimes charged,
including, but not limited to … knowledge” (id., subd. (a)). (See People v. Atkins (2001)
25 Cal.4th 76, 81; People v. Hernandez (1988) 46 Cal.3d 194, 209 [evidence of voluntary
intoxication inadmissible to negate existence of general criminal intent].)
       As previously discussed at length, substantial evidence established defendant was
under the influence of methamphetamine. By contrast, there was no proof—let alone
minimal and insubstantial proof—he used the drug involuntarily. Furthermore, evidence
of defendant’s voluntary intoxication would have been inadmissible to negate the mental
states for each crime charged. Murder under a theory of implied malice is “absen[t] …
from the exceptions listed in [section 29.4,] subdivision (b)” (People v. Timms (2007) 151
Cal.App.4th 1292, 1300), thus “preclud[ing] evidence of voluntary intoxication to negate
implied malice aforethought” (People v. Martin (2000) 78 Cal.App.4th 1107, 1114).
Likewise, gross negligence—an element of gross vehicular manslaughter while
intoxicated—“is not one of the mental states listed in section [29.4], subdivision (b) ….”
(People v. Carlson (2011) 200 Cal.App.4th 695, 699, 709.) Finally, section 29.4,
subdivision (a), expressly prohibits evidence of voluntary intoxication to negate the
capacity to form the mental state of knowledge, an element of driving with a suspended
license. (See Veh. Code, § 14601.2, subd. (a).) An unconsciousness instruction would
have been unjustified.
       Even assuming arguendo the trial court improperly refused to instruct on
unconsciousness, under the Watson13 test (People v. Lee, supra, 131 Cal.App.4th at
p. 1429), it is not reasonably probable defendant was prejudiced. At trial, defendant

13     People v. Watson (1956) 46 Cal.2d 818, 836.


                                            29.
asserted he was not under the influence of methamphetamine at the time of the accident
and the cause of his somnolence was unknown. Since CALCRIM No. 3425 cannot be
based on voluntary intoxication (ante, fn. 12), a viable claim of unconsciousness hinged
on whether the jury believed defendant’s account. However, because the jury resolved
this question against defendant, defendant’s theory of unconsciousness would have been
rejected.

IV.    Defendant’s blood test results were not subject to exclusion.
       a. Background.
       On May 8, 2013, defense counsel filed a motion in limine to “prohibit[] the
[p]rosecution from directly or indirectly identifying to the jury or making any comment
of the fact of a blood draw or analysis or of the results of or of any opinions based upon a
blood draw or analysis of the defendant’s blood.” He cited as supporting authority
Missouri v. McNeely (2013) 569 U.S. ___ [133 S.Ct. 1552] (McNeely), inter alia. The
trial court denied the motion.
       b. Standard of review.
       “‘In reviewing a suppression ruling, “we defer to the superior court’s express and
implied factual findings if they are supported by substantial evidence, [but] we exercise
our independent judgment in determining the legality of a search on the facts so found.”’
[Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 979.) “On appeal we consider the
correctness of the trial court’s ruling itself, not the correctness of the trial court’s reasons
for reaching its decision.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
       c. Analysis.
       “A defendant may move … to suppress as evidence any tangible or intangible
thing obtained as a result of a search or seizure on … the … grounds … [¶] … [t]he
search or seizure without a warrant was unreasonable.” (§ 1538.5, subd. (a)(1)(A).) “We
review issues relating to the suppression of evidence derived from police searches and



                                              30.
seizures under federal constitutional standards.” (People v. Rossetti (2014) 230
Cal.App.4th 1070, 1074 (Rossetti), citing People v. Bradford (1997) 15 Cal.4th 1229,
1291.)
         “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” (U.S. Const.,
4th Amend.) “‘[T]he ultimate touchstone of the Fourth Amendment is “reasonableness.”’
[Citation.]” (Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2482].) “‘[W]here
a search is undertaken by law enforcement officials to discover evidence of criminal
wrongdoing, … reasonableness generally requires the obtaining of a judicial warrant.’
[Citation.]” (Ibid.) “Search warrants are ordinarily required for searches of dwellings,
and, absent an emergency, no less could be required where intrusions into the human
body are concerned.” (Schmerber v. California (1966) 384 U.S. 757, 770 (Schmerber),
italics added; see Winston v. Lee (1985) 470 U.S. 753, 759 [a subcutaneous intrusion
“implicates expectations of privacy and security of such magnitude that the intrusion may
be ‘unreasonable’ even if likely to produce evidence of a crime”].)
         In 2011, Schmerber was controlling authority. (Accord, Rossetti, supra, 230
Cal.App.4th at pp. 1074-1075; People v. Youn (2014) 229 Cal.App.4th 571, 576 (Youn);
see People v. Jones (2014) 231 Cal.App.4th 1257, 1265 [binding judicial precedent in
California pre-McNeely consistently interpreted Schmerber to permit warrantless blood
draws performed in a medically approved manner].) In that case, the defendant was
involved in an automobile accident. (Schmerber, supra, 384 U.S. at p. 758.) At the
scene of the accident, he “smelled [of] liquor” and had “‘bloodshot, watery’” eyes. (Id. at
pp. 768-769.) The defendant was taken to a hospital, where—at the direction of a police
officer—a physician obtained a blood sample. (Id. at p. 758.) The defendant did not
consent to the blood draw. (Id. at p. 759.) Testing revealed a percent by weight of

                                              31.
alcohol indicative of intoxication. The toxicology report was later admitted into evidence
at trial. (Ibid.) The defendant was convicted of alcohol DUI. (Id. at p. 758.)
       One of the primary issues before the United States Supreme Court in Schmerber
was “whether the chemical analysis [of the defendant’s blood] should have been excluded
as the product of an unconstitutional search and seizure.” (Schmerber, supra, 384 U.S. at
pp. 766-767.) Although it confirmed compulsory blood tests “plainly constitute searches
of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of
th[e Fourth] Amendment” (id. at p. 767) and a warrant is “ordinarily required” to allow
“‘a neutral and detached magistrate’” to draw “the inferences to support the search” (id.
at p. 770), the high court concluded defendant’s Fourth Amendment right “to be free of
unreasonable searches and seizures” was not infringed (Schmerber, supra, at p. 772). It
reasoned:

               “The officer in the present case … might reasonably have believed
       that he was confronted with an emergency, in which the delay necessary to
       obtain a warrant, under the circumstances, threatened ‘the destruction of
       evidence,’ [citation]. We are told that the percentage of alcohol in the
       blood begins to diminish shortly after drinking stops, as the body functions
       to eliminate it from the system. Particularly in a case such as this, where
       time had to be taken to bring the accused to a hospital and to investigate the
       scene of the accident, there was no time to seek out a magistrate and secure
       a warrant. Given these special facts, we conclude that the attempt to secure
       evidence of blood-alcohol content in this case was an appropriate incident
       to [the defendant]’s arrest.

              “Similarly, we are satisfied that the test chosen to measure [the
       defendant]’s blood-alcohol level was a reasonable one. Extraction of blood
       samples for testing is a highly effective means of determining the degree to
       which a person is under the influence of alcohol. [Citation.] Such tests are
       a commonplace in these days of periodic physical examinations and
       experience with them teaches that the quantity of blood extracted is
       minimal, and that for most people the procedure involves virtually no risk,
       trauma, or pain….

             “Finally, the record shows that the test was performed in a
       reasonable manner. [The defendant]’s blood was taken by a physician in a


                                            32.
      hospital environment according to accepted medical practices. We are thus
      not presented with the serious questions which would arise if a search
      involving use of a medical technique, even of the most rudimentary sort,
      were made by other than medical personnel or in other than a medical
      environment—for example, if it were administered by police in the privacy
      of the stationhouse.” (Schmerber, supra, 384 U.S. at pp. 770-772, fns.
      omitted.)
      Post-Schmerber and pre-McNeely, a period spanning nearly 50 years, “‘California
cases uniformly interpreted Schmerber to mean that no exigency beyond the natural
evanescence of intoxicants in the bloodstream, present in every DUI case, was needed to
establish an exception to the warrant requirement.’ [Citation.]” (Youn, supra, 229
Cal.App.4th at p. 577; see People v. Ritchie (1982) 130 Cal.App.3d 455, 457-459
[applying Schmerber to drug DUI case].) In 2013, however, the United States Supreme
Court in McNeely repudiated this interpretation of Schmerber:

      “[T]he warrant requirement is subject to exceptions. ‘One well-recognized
      exception’ … ‘applies when the exigencies of the situation make the needs
      of law enforcement so compelling that a warrantless search is objectively
      reasonable under the Fourth Amendment.’ [Citation.] A variety of
      circumstances may give rise to an exigency sufficient to justify a
      warrantless search …. [W]e have also recognized that in some
      circumstances law enforcement officers may conduct a search without a
      warrant to prevent the imminent destruction of evidence….

              “To determine whether a law enforcement officer faced an
      emergency that justified acting without a warrant, this Court looks to the
      totality of circumstances. [Citations.] We apply this ‘finely tuned
      approach’ to Fourth Amendment reasonableness in this context because the
      police action at issue lacks ‘the traditional justification that … a warrant …
      provides.’ [Citation.] Absent that established justification, ‘the fact-
      specific nature of the reasonableness inquiry,’ [citation], demands that we
      evaluate each case of alleged exigency based ‘on its own facts and
      circumstances.’ [Citation.] [¶] … [¶]

             “It is true that as a result of the human body’s natural metabolic
      processes, the alcohol level in a person’s blood begins to dissipate once the
      alcohol is fully absorbed and continues to decline until the alcohol is
      eliminated…. This fact was essential to our holding in Schmerber, as we
      recognized that, under the circumstances, further delay in order to secure a


                                           33.
       warrant after the time spent investigating the scene of the accident and
       transporting the injured suspect to the hospital to receive treatment would
       have threatened the destruction of evidence. [Citation.]

               “But it does not follow that we should depart from careful case-by-
       case assessment of exigency and adopt [a] categorical rule …. In those
       drunk-driving investigations where police officers can reasonably obtain a
       warrant before a blood sample can be drawn without significantly
       undermining the efficacy of the search, the Fourth Amendment mandates
       that they do so…. We do not doubt that some circumstances will make
       obtaining a warrant impractical such that the dissipation of alcohol from the
       bloodstream will support an exigency justifying a properly conducted
       warrantless blood test. That, however, is a reason to decide each case on its
       facts, as we did in Schmerber, not to accept the ‘considerable
       overgeneralization’ that a per se rule would reflect. [Citation.] [¶] … [¶]

               “In short, while the natural dissipation of alcohol in the blood may
       support a finding of exigency in a specified case, as it did in Schmerber, it
       does not do so categorically. Whether a warrantless blood test of a drunk-
       driving suspect is reasonable must be determined case by case based on the
       totality of the circumstances. [¶] … [¶] We hold that in drunk-driving
       investigations, the natural dissipation of alcohol in the bloodstream does
       not constitute an exigency in every case sufficient to justify conducting a
       blood test without a warrant.” (McNeely, supra, 569 U.S. at pp. ___-___,
       ___, ___ [133 S.Ct. at pp. 1558-1561, 1563, 1568], citations & fn. omitted.)
       Notwithstanding McNeely and the general rule the United States Supreme Court’s
new interpretation of the federal Constitution must be given retroactive application to
pending cases (Rossetti, supra, 230 Cal.App.4th at p. 1076), in the instant case, we “need
not resolve the question [of] whether the warrantless blood test was reasonable under
the[] circumstances [per McNeely], because even if it were not, the results of the test
would not be excluded from evidence” (Youn, supra, 229 Cal.App.4th at p. 578).
       The Fourth Amendment “‘contains no provision expressly precluding the use of
evidence obtained in violation of its commands’” (Herring v. United States (2009) 555
U.S. 135, 139), but the United States Supreme Court “establish[ed] an exclusionary rule
that, when applicable, forbids the use of improperly obtained evidence at trial” (ibid.).
The exclusionary rule “is a ‘prudential’ doctrine, [citation], created … to ‘compel respect



                                            34.
for the constitutional guaranty.’ [Citations.]” (Davis v. United States (2011) 564 U.S.
___, ___ [131 S.Ct. 2419, 2426] (Davis).) “Exclusion is ‘not a personal constitutional
right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.
[Citations.] The rule’s sole purpose … is to deter future Fourth Amendment violations.
[Citations.]” (Ibid.) In other words, the exclusionary rule is limited “to situations in
which [deterrence] is ‘thought most efficaciously served.’ [Citation.] Where suppression
fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly … unwarranted.’ [Citation.]”
(Id. at pp. ___-___ [131 S.Ct. at pp. 2426-2427].)
       “[T]he deterrence benefits of exclusion ‘var[y] with the culpability of the law
enforcement conduct’ at issue.” (Davis, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2427].)
“When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for
Fourth Amendment rights, the deterrent value of exclusion is strong and tends to
outweigh the resulting costs. [Citation.]” (Ibid.) “But when the police act with an
objectively ‘reasonable good-faith belief’ that their conduct is lawful, [citation], or when
their conduct involves only simple, ‘isolated’ negligence, [citation], the ‘“deterrence
rationale loses much of its force,”’ and exclusion cannot ‘pay its way.’ [Citation.]” (Id.
at pp. ___-___ [131 S.Ct. at pp. 2427-2428].) In particular, “when binding appellate
precedent specifically authorizes a particular police practice, well-trained officers will
and should use that tool to fulfill their crime-detection and public-safety responsibilities.
An officer who conducts a search in reliance on binding appellate precedent does no
more than ‘“ac[t] as a reasonable officer would and should act”’ under the circumstances.
[Citation.] The deterrent effect of exclusion in such a case can only be to discourage the
officer from ‘“do[ing] his duty.”’ [Citation.]’” (Id. at p. ___ [131 S.Ct. at p. 2429].)
Hence, “searches conducted in objectively reasonable reliance on binding appellate
precedent are not subject to the exclusionary rule.” (Id. at pp. ___-___ [131 S.Ct. at
pp. 2423-2424].)



                                             35.
       Here, the record shows defendant, after having run over two pedestrians with his
truck, informed a hospital nurse he “was withdrawing from methamphetamine.” Paglia,
who was present, overheard this remark. In “objectively reasonable reliance” (Davis,
supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2423]) on Schmerber, then still authoritative,
Paglia could “reasonably have believed that he was confronted with an emergency, in
which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the
destruction of evidence’” (Schmerber, supra, 384 U.S. at p. 770), i.e., the natural
evanescence of methamphetamine in the bloodstream. His request for a blood draw to
secure evidence of defendant’s drug intoxication fell “within the parameters of the ‘good
faith’ exception to the exclusionary rule.” (Rossetti, supra, 230 Cal.App.4th at p. 1076.)
Therefore, denial of the motion to suppress was proper.14

V.     The trial court did not abuse its discretion when it admitted into evidence
       Fidler’s opinion regarding defendant’s state of intoxication.*
       a. Background.
       On direct examination, Fidler—a 17-year law enforcement veteran at the time of
trial—testified about his education and experience. While he was in the police academy
and “mini academy,” he was instructed on alcohol and drug DUI investigations. After
graduating, Fidler received approximately 100 hours of formalized training on alcohol
and drug DUI investigations and “partnered up with three different field training
officers,” all of whom were skilled alcohol and drug DUI investigators. As a patrolman,
he frequently contacted and arrested “people who were either intoxicated by alcohol or
drugs.” During his career, Fidler participated as either “the initial officer[,] the

14     The same conclusion was reached by the First Appellate District (People v. Jones,
supra, 231 Cal.App.4th 1257 [alcohol DUI]; Rossetti, supra, 230 Cal.App.4th 1070
[alcohol DUI]), Second Appellate District (Youn, supra, 229 Cal.App.4th 571 [drug
DUI]), and Fourth Appellate District (People v. Harris (2015) 234 Cal.App.4th 671 [drug
DUI]).
*      See footnote, ante, page 1.


                                              36.
investigating officer or assisting officer in well over [1,000] investigations where
someone was determined … or was believed to be under the influence of alcohol or a
drug.” He was also a “POST-certified standardized field sobriety instructor.” Fidler was
familiar with methamphetamine and its symptoms, having encountered “more than
[1,000]” users “over the years.”
       Fidler related he spoke to defendant at the scene of the accident on April 26, 2011.
Defendant “appeared nervous and jittery,” “had an accelerated, mumbled speech,” and
“show[ed] signs of bruxism,” i.e., “consistent” “clench[ing],” “twitch[ing],” and/or
“thrust[ing of] the[] jaw ….” In addition, defendant admitted he was “coming down off
of speed.”
       On cross-examination, Fidler testified he (1) had not authored “any studies of the
phases of methamphetamine intoxication and burn off”; (2) had not been trained “to
recognize a person being under the influence of methamphetamine, either during the
period of time where he is … enjoying his intoxication … or whether it’s burning off”;
and (3) did not specifically know the “differences of symptomatology … between the
burn-off phase and the absorption phase.” He was not a drug recognition expert and
would defer to such an expert on these issues.
       On redirect examination, the following colloquy transpired:

             “[PROSECUTOR:] … [Defendant] told you that he was coming
       down [off] o[f] speed. [¶] Based on what you saw, did you believe him?

              “[DEFENSE COUNSEL]: I’m going to object. Lack of foundation,
       Your Honor. The witness … just testif[ied] he can’t recognize the
       distinction.

              “THE COURT: Overruled. [¶] You can answer. [¶] … [¶]

             “[FIDLER]: When you take into consideration all the things
       [defendant] was displaying, the fact that he told me that he was using
       methamphetamine or speed; the fact that he was showing an accelerated
       speech or mumbled speech; the fact that he … appeared nervous and jittery,



                                            37.
       those things, in themselves, allow me to form the opinion that, yes, he was
       impaired by methamphetamine.”
       b. Standard of review.
       “Admission of lay opinion testimony is within the discretion of the trial court and
will not be disturbed ‘unless a clear abuse of discretion appears.’ [Citations.]” (People v.
Mixon (1982) 129 Cal.App.3d 118, 127; accord, People v. Leon (2015) 61 Cal.4th 569,
600.) “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed,
and reversal of the judgment is not required, unless the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1004;
see People v. Kipp (1998) 18 Cal.4th 349, 371 [“A court abuses its discretion when its
ruling ‘falls outside the bounds of reason.’”].)
       c. Analysis.
       “If a witness is not testifying as an expert, his testimony in the form of an opinion
is limited to such an opinion as is permitted by law, including but not limited to an
opinion that is: [¶] … [r]ationally based on the perception of the witness ….” (Evid.
Code, § 800, subd. (a); accord, People v. McAlpin (1991) 53 Cal.3d 1289, 1306
(McAlpin).) “By contrast, when a lay witness offers an opinion that goes beyond the
facts [he or she] personally observed, it is … inadmissible.” (McAlpin, supra, at
p. 1308.)
       “[T]he question of whether a person was intoxicated is not necessarily a matter of
expert testimony, as any layman can give his opinion based upon his own observation.”
(People v. Ravey (1954) 122 Cal.App.2d 699, 703; see McAlpin, supra, 53 Cal.3d at
p. 1308 [lay opinion on intoxication admissible whether intoxication is induced by
alcohol or drugs]; People v. Williams (1988) 44 Cal.3d 883, 915 [“The manifestation of
drug intoxication and withdrawal are no less subtle than those of alcohol intoxication,
and, unfortunately may be sufficiently common today that lay persons are capable of



                                             38.
recognizing them.”].) For instance, “[l]ay witnesses have been permitted to give an
opinion of another’s state of intoxication when based on the witness’s personal
observations of such commonly recognizable signs as an odor of alcohol, slurring of
speech, unsteadiness, and the like.” (People v. Williams (1992) 3 Cal.App.4th 1326,
1332; cf. People v. Navarette (2003) 30 Cal.4th 458, 493-494 [in capital murder
prosecution, trial court properly disallowed lay witnesses’ testimonies regarding the
defendant “look[ing] like he was under the influence of cocaine during the day preceding
the murders” because neither witness had ever previously observed someone in a
cocaine-intoxicated state].) Police officers in the capacity of nonexpert witnesses are
allowed to opine that a defendant is intoxicated or sober so long as this opinion is based
on their firsthand scrutiny of the defendant’s appearance and demeanor. (See, e.g.,
People v. Spencer (1963) 60 Cal.2d 64, 88; People v. Ruiz (1968) 265 Cal.App.2d 766,
773; People v. Ravey, supra, 122 Cal.App.2d at pp. 702-703.)
       We conclude the trial court did not abuse its discretion when it allowed Fidler to
respond to the prosecutor’s question, which essentially asked him to give an opinion on
whether defendant had taken methamphetamine “[b]ased on what [he] saw.” As a
percipient witness, Fidler had observed defendant acting nervous and jittery, muttering
hastily, and clenching his jaw. Having developed a functional awareness of the
symptoms of methamphetamine ingestion via his frequent encounters with users over the
course of his career, Fidler permissibly opined defendant was intoxicated.

VI.    The trial court did not abuse its discretion when it admitted into evidence
       defendant’s DUI convictions from 1987, 1988, and 2002.*
       a. Background.
       Defendant was previously convicted of DUI seven times: twice in 1987, thrice in
1988, once in 2002, and once in 2009. The prosecutor sought to admit into evidence all


*      See footnote, ante, page 1.


                                            39.
seven prior convictions to prove implied malice. Defense counsel objected to the
admissibility of the five convictions in the late 1980’s and the conviction in 2002 on the
grounds they were irrelevant, remote, cumulative, and voluminous, pertained to alcohol
DUI and not methamphetamine DUI, and “paint[ed defendant] as a very bad person ….”
       In a May 10, 2013, motion hearing, the trial court ruled:

       “[I]n lieu of telling the jury there w[ere] two [DUI convictions] in ’87 and
       three in ’88, [the prosecutor] can get into the fact that [defendant] was
       convicted of a DUI in ’87 and convicted of DUI in ’88. Not that there were
       five, but that he suffered a DUI in each year…. [¶] Regarding 2002 and
       2009, those are both in as is. [¶] So the jury will essentially hear that
       [defendant] suffered DUI convictions in ’87, ’88, ’02 and ’09.”
The court found no meaningful distinction between alcohol DUI and drug DUI, given
“that inability to drive with the caution characteristic of a sober person under the same or
similar circumstances relates to both” and acknowledged the relevance of defendant’s
prior DUI convictions to prove murder under a theory of implied malice. It also
determined the 1987 and 1988 convictions were “not remote,” noting defendant’s
criminal record showed (1) “an entry, every single year [between 1989 and 1998], of
some sort of violation or new law offense”; (2) four years of imprisonment between 1998
and 2002; (3) “an entry … for one sort of offense o[r] arrest or conviction or violation of
parole” in 2002, 2003, 2005, and 2006; (4) 32 months of imprisonment between 2006 and
2009; (5) a DUI in 2009; and (6) “an entry in 2010.”15
       At trial, the jury received a limiting instruction16 and the parties offered several
stipulations. (See ante, at pp. 6-8.)


15     Defendant concedes this is an accurate representation of his criminal record.
16     Defendant challenges the trial court’s limiting instruction as “not limiting [the
prior DUI convictions] to proper considerations, misdirecting the jurors, and causing
confusion of the issues.” We decline to address this argument because it is not listed
under a separate heading or subheading as required by California Rules of Court,
rule 8.204(a)(1)(B). (Cf. People v. Roscoe (2008) 169 Cal.App.4th 829, 840.)


                                             40.
       b. Standard of review.
       Rulings made under Evidence Code sections 352 and 1101 are reviewed for an
abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328; People v. Mungia
(2008) 44 Cal.4th 1101, 1130; see ante, at p. 38.)
       c. Analysis.
       “Evidence that a defendant has committed crimes other than those currently
charged is not admissible to prove that the defendant is a person of bad character or has a
criminal disposition ….” (People v. Kipp, supra, 18 Cal.4th at p. 369, citing Evid. Code,
§ 1101.) “However, the evidence may be admitted when it is relevant to prove another
issue in the case such as opportunity, intent, knowledge, identity, or absence of mistake.”
(People v. Malone (1988) 47 Cal.3d 1, 17, citing Evid. Code, § 1101, subd. (b).)
       Even if other-crimes evidence is relevant on one of the grounds enumerated in
Evidence Code section 1101, subdivision (b), it “must not contravene other policies
limiting admission, such as Evidence Code section 352.” (People v. Malone, supra, 47
Cal.3d at p. 18.) Thus, “the trial court [also] must consider whether the probative value
of the [other-crimes] evidence ‘is “substantially outweighed by the probability that its
admission [would] … create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” [Citation.]’ [Citation.]” (People v. Foster, supra, 50
Cal.4th at p. 1328.) “‘The “prejudice” referred to in Evidence Code section 352 applies
to evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.’” (People v. Karis (1988) 46
Cal.3d 612, 638.) “‘In other words, evidence should be excluded as unduly prejudicial
when it is of such nature as to inflame the emotions of the jury, motivating them to use
the information, not to logically evaluate the point upon which it is relevant, but to
reward or punish one side because of the jurors’ emotional reaction. In such a
circumstance, the evidence is unduly prejudicial because of the substantial likelihood the



                                             41.
jury will use it for an illegitimate purpose.’ [Citation.]” (People v. Doolin (2009) 45
Cal.4th 390, 439.)
       In the instant case, defendant’s DUI convictions in 1987, 1988, and 2002 were
probative on the knowledge element of implied malice. (See, e.g., People v. Garcia
(1995) 41 Cal.App.4th 1832, 1849, disapproved on other grounds in People v. Sanchez
(2001) 24 Cal.4th 983, 991, fn. 3; People v. Brogna (1988) 202 Cal.App.3d 700, 707;
People v. McCarnes (1986) 179 Cal.App.3d 525, 532.) Although defendant continues to
campaign for disparate treatment of alcohol DUI and drug DUI, we refuse to acquiesce.
Whether induced by alcohol or drugs, a DUI “is unlawful … because it is dangerous ….”
(People v. McCarnes, supra, at p. 532.) Defendant would have us “ignore that basic
proposition ….” (Ibid.)
       Moreover, admission of defendant’s DUI convictions in 1987, 1988, and 2002 did
not create a substantial danger of undue prejudice under Evidence Code section 352. The
brief presentation of these uncharged offenses via stipulation was neither extensive, time
consuming, nor uniquely inflammatory. In reality, the facts underlying the charged
offenses of second degree murder and gross vehicular manslaughter while intoxicated—
i.e., mowing down two pedestrians—were more likely to have aroused the passions of the
jurors against him. As for cumulativeness, the trial court mitigated this concern by
reducing the number of uncharged crimes to be identified from seven to four. A limiting
instruction warning jurors not to consider the prior DUI convictions “as evidence of
[defendant’s] bad character” was also issued. (See People v. Frazier (2001) 89
Cal.App.4th 30, 42; People v. Garcia, supra, 41 Cal.App.4th at p. 1850 [risk of jury
punishing a defendant for an uncharged crime counterbalanced by appropriate
instruction]; see also People v. Holt (1997) 15 Cal.4th 619, 662 [“Jurors are presumed to
understand and follow the court’s instructions.”].) Lastly, while two of the prior DUI
convictions occurred more than two decades before the April 26, 2011, accident,
respectively, their remoteness was somewhat minimized by defendant’s incarceration for

                                            42.
approximately seven of those years. (See People v. Walker (2006) 139 Cal.App.4th 782,
807.) In addition, remoteness “is but one factor in [an Evidence Code section 352]
assessment.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 133.)
       Absent evidence the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner (People v. Hovarter, supra, 44 Cal.4th at p. 1004), we leave
this evidentiary ruling intact.

VII.   Admission of defendant’s mug shot profile did not constitute prejudicial
       error.*
       a. Background.
       The prosecutor sought to introduce defendant’s April 26, 2011, mug shot profile.17
Defense counsel objected on the grounds defendant “look[ed] like a hardened criminal
….” After looking at the photograph and disagreeing with defense counsel’s description,
the trial court admitted the mug shot profile.
       Defendant’s mug shot profile displayed other information, including the
“[c]harges”— i.e., second degree murder, drug DUI resulting in bodily injury, parole
violation—and “[b]ooking,” “LAR,” “CII,” and “FBI” numbers.
       b. Standard of review.
       An appellate court reviews a trial court’s rulings regarding relevancy for abuse of
discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74 (Merriman); see ante, at p. 41.)
       c. Analysis.
       “Only relevant evidence is admissible at trial.” (Merriman, supra, 60 Cal.4th at
p. 74, citing Evid. Code, § 350.) “Under Evidence Code section 210, relevant evidence is



*      See footnote, ante, page 1.
17     The prosecutor had also sought to introduce defendant’s booking photograph taken
in connection with his drug DUI case in 2009, but withdrew after defense counsel
maintained he would not dispute defendant’s conviction in that case.


                                             43.
evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.’” (Merriman, supra, at p. 74.)
       Defendant contends the mug shot profile “had no tendency to prove any material
fact in dispute.” We are inclined to agree. Defendant’s “identification … as the
perpetrator of the crime[s] charged” (People v. Cook (1967) 252 Cal.App.2d 25, 29) was
not at issue. Furthermore, the mug shot profile conveyed “hearsay declarations of
material fact which were inadmissible in themselves” (id. at p. 30), a point the Attorney
General concedes.
       By constitutional mandate, “[n]o judgment shall be set aside, or new trial granted,
in any cause, on the ground of … the improper admission or rejection of evidence, …
unless, after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13; accord, Evid. Code, § 354, subd. (a).) “[A] ‘miscarriage of justice’
should be declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson, supra, 46 Cal.2d at p. 836; accord, People v. Callahan (1999)
74 Cal.App.4th 356, 363.)
       Substantial evidence established defendant appreciated the risk of driving while
under the influence of methamphetamine and disregarded that risk when he elected to
drive in an impaired condition on April 26, 2011. Defendant’s mug shot profile added
little to what the jury already knew—that he had prior arrests, convictions, and sentences.
Its admission, though erroneous, did not result in a miscarriage of justice. Even had the
court excluded this document, it is not reasonably probable defendant would have
received a more favorable verdict.




                                             44.
VIII. One sentencing error must be corrected.*
       At sentencing, the trial court pronounced the following terms: 30 years to life,
plus five years for a prior serious felony conviction and four years for four prior prison
terms, on count one; 30 years to life, plus five years for a prior serious felony conviction
and four years for four prior prison terms, on count two, to be served consecutively; 30
years to life, plus five years for a prior serious felony conviction and four years for four
prior prison terms, on count three, stayed pursuant to section 654; 30 years to life, plus
five years for a prior serious felony conviction and four years for four prior prison terms,
on count four, stayed pursuant to section 654; and 180 days in jail on count five, to be
served concurrently.
       On appeal, defendant raises various sentencing errors, one of which must be
corrected.

       a. The abstract of judgment must be amended to reflect the sentence
          pronounced by the trial court.
       An abstract of judgment is “a contemporaneous, statutorily sanctioned, officially
prepared clerical record of the conviction and sentence.” (People v. Delgado (2008) 43
Cal.4th 1059, 1070, italics omitted.) “Under [section 1213], ‘the certified abstract of the
judgment constitutes the commitment. [Citations.] It is thus the order sending the
defendant to prison and “the process and authority for carrying the judgment and
sentence into effect.” [Citations.]’ [Citation.]” (People v. Mitchell (2001) 26 Cal.4th
181, 185.) However, “[a]n abstract of judgment is not the judgment of conviction; it does
not control if different from the trial court’s oral judgment and may not add to or modify
the judgment it purports to digest or summarize.” (Ibid.) “When an abstract of judgment
does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement,
[an appellate] court has the inherent power to correct such clerical error on appeal,


*      See footnote, ante, page 1.


                                             45.
whether on [its] own motion or upon application of the parties.” (People v. Jones (2012)
54 Cal.4th 1, 89.)
       Here, both the August 6, 2013, abstract of judgment and the September 11, 2013,
amended abstract of judgment mistakenly listed, on page 4, an additional two-year term.
This clerical error must be corrected.18

       b. The second alleged prior conviction on count five need not be stricken
          or dismissed, and, as to count five, the abstract of judgment need not be
          amended.
       Count five of the indictment alleged defendant drove a vehicle at a time when his
driver’s license “was suspended or revoked pursuant to Vehicle Code Section 14601.2(a),
and did an act forbidden by law or neglected a duty imposed by law, which act or neglect
proximately caused bodily injury to another person, in violation of Vehicle Code
Section 14601.4(a), a misdemeanor.” Also alleged as to count five, were two prior
convictions “within the meaning of California Vehicle Code Section 14601.2(d)(2).” The
jury returned a verdict of guilty on “Driving with a Revoked or Suspended License and
Causing Injury, in violation of Section 14601.4(a) of the Vehicle Code, as charged in the
fifth count of the Indictment.” In a bifurcated trial, the court found the first alleged prior
conviction to be true. That allegation read defendant had, “within five years of the
commission” of the offense alleged in count five, “committed a violation of Vehicle Code
Section 14601.2 ….” The court made “[n]o finding” as to the second alleged prior
conviction.
       Defendant now argues, as to the second alleged prior conviction, that “the
enhancement should be stricken as unsupported.” The People assert defendant is




18     Defendant also contends the four prior prison term enhancements should have
attached once to the aggregate sentence. We reject the claim in view of People v. Garcia
(2008) 167 Cal.App.4th 1550.


                                              46.
“correct[],” the prior conviction allegation should be dismissed, and the abstract of
judgment amended to reflect “dismissal of the enhancement.”
       Neither defendant nor the People allege the sentence imposed on count five was
error and it was not.19 What they both urge is that the second prior offense be “stricken”
or “dismissed.” Neither explain from where that prior offense should be removed. The
sentencing minute order merely states “DEFENDANT TO SERVE 180 DAYS IN
CUSTODY AS TO COUNT 5. [¶] COUNT 5 TO BE SERVED CONCURRENT WITH
COUNT 1.”20 Contrary to the inference suggested by the People’s assertion, “the
enhancement” is not listed on the abstract of judgment.21 There is nothing to “strike,”
“dismiss,” or “amend.”




19     A conviction for violation of Vehicle Code section 14601.4, subdivision (a), which
occurs within five years of a prior offense that resulted in a conviction of Vehicle Code
section 14601.2 allows for imprisonment in the county jail for not less than 30 days nor
more than one year. (Veh. Code, § 14601.2, subd. (d)(2).)
20    Defendant’s presentence time credits (834 days) exceeded the sentence imposed
on count five.
21      In fact, neither the conviction nor the sentence on count five is listed on the
abstract of judgment. An abstract of judgment is “the order sending the defendant to
prison and ‘the process and authority for carrying the judgment and sentence into
effect.’” (In re Black (1967) 66 Cal.2d 881, 890.) Its ultimate purpose is to act as a
summary of the trial court’s judgment for prison authorities that are responsible for the
execution of the defendant’s sentence. (People v. Mitchell, supra, 26 Cal.4th at p. 185;
People v. Hong (1998) 64 Cal.App.4th 1071, 1076, 1080.) The Judicial Council has
statutory authorization to determine the contents of what is to appear in the abstract of
judgment, (§ 1213.5; People v. Hong, supra, at p. 1082) and the form does not have an
entry for misdemeanor offenses. Item 11 allows for documentation of “[o]ther orders.”
The trial court could have listed the information relating to count five there, but since
defendant completed his sentence on that count prior to his delivery to state prison, it is
not information needed by prison authorities to fulfill their obligation. (See People v.
Hong, supra, at p. 1083.)


                                             47.
IX.    The trial court did not abuse its discretion when it determined certain peace
       officers’ personnel records contained no discoverable material.*

       a. Background.
       On March 13, 2013, defense counsel filed a motion for discovery of the personnel
records of Fidler and Officer Christopher Bagby. Specifically, he sought documentation
relating to “complaint[s] … by any inmate, fellow officer, or private citizen alleging any
use of unnecessary force or violence, acts demonstrating racial or ethnic prejudice, illegal
or false arrest, improper tactics, dishonesty, false imprisonment, false police reports, and
illegal search and seizure.” On April 2, 2013, the trial court found good cause to review
Fidler’s and Bagby’s records with respect to “truthfulness and false reports” only. The
court subsequently conducted an in camera hearing, found no discoverable material, and
sealed the reporter’s transcript.
       On appeal, defendant asks us to “review the confidential reporter’s transcript and
any other associated material before the trial court when it ruled on the [Pitchess]
motion” and “determine whether the trial court abused its discretion in refusing to
disclose the contents of the officer[s’] personnel records pursuant to Pitchess.” (Italics
added.) The Attorney General does not oppose this request.
       b. Standard of review.
       “A trial court’s ruling on a motion for access to law enforcement personnel
records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27
Cal.4th 287, 330; see ante, at p. 38.)
       c. Analysis.
       “‘A criminal defendant has a limited right to discovery of a peace officer’s
personnel records. [Citation.] Peace officer personnel records are confidential and can
only be discovered pursuant to Evidence Code sections 1043 and 1045.’ [Citation.]”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see People v. Mooc (2001) 26

*      See footnote, ante, page 1.


                                             48.
Cal.4th 1216, 1220 (Mooc) [California Legislature codified Pitchess motions].) “[O]n a
showing of good cause, a criminal defendant is entitled to discovery of relevant
documents or information in the confidential personnel records of a peace officer accused
of misconduct against the defendant.” (People v. Gaines (2009) 46 Cal.4th 172, 179
(Gaines), citing Evid. Code, § 1043, subd. (b).) “Good cause for discovery exists when
the defendant shows both ‘“materiality” to the subject matter of the pending litigation and
a “reasonable belief” that the agency has the type of information sought.’ [Citation.]”
(Gaines, supra, at p. 179.)
       “If the trial court concludes the defendant has … made a showing of good cause,
the custodian of records should bring to court all documents ‘potentially relevant’ to the
defendant’s motion” (Mooc, supra, 26 Cal.4th at p. 1226) and “the court must review the
requested records in camera to determine what information, if any, should be disclosed”
(Gaines, supra, 46 Cal.4th at p. 179). “Subject to statutory exceptions and limitations …
the trial court should then disclose to the defendant ‘such information [that] is relevant to
the subject matter involved in the pending litigation.’” (Mooc, supra, at p. 1226, quoting
Evid. Code, § 1045, subd. (a).)
       Here, the trial court followed proper procedure and created an adequate record of
the April 2, 2013, in-camera hearing. (See Mooc, supra, 26 Cal.4th at pp. 1228-1229.)
We also examined Fidler’s and Bagby’s confidential personnel files.22 Based on our
review, the trial court did not fail to disclose materials “so clearly pertinent to the issues
raised by the Pitchess discovery motion that failure to disclose them was an abuse of
Pitchess discretion.” (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We thus
conclude the court properly exercised its discretion.




22     We ordered the augmentation of the appellate record to include these materials.


                                              49.
                                      DISPOSITION
       The additional two-year term entered in the August 6, 2013, abstract of judgment
and the September 11, 2013, amended abstract of judgment is stricken. The trial court is
directed to prepare a corrected abstract of judgment and transmit copies thereof to the
appropriate authorities. As so modified, the judgment is affirmed.



                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


 _____________________
 KANE, Acting P.J.


 _____________________
 PEÑA, J.




                                            50.
