Filed 10/13/15 P. v. Delgado CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039723
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC932306)

         v.

RICHARD ANTHONY DELGADO,

         Defendant and Appellant.



         A jury found defendant Richard Anthony Delgado guilty of second degree murder
for killing his neighbor Donna Fife by running over her with a Honda Civic. (Pen.
Code, § 187.)1 The incident occurred on the front lawn of a neighbor’s house.
Defendant’s neighbors had been gathered around the house after defendant had been seen
“doing donuts” in the street in his grandfather’s car, leaving wreckage in a fence.
Although the jury found defendant guilty of second degree murder, it returned no finding
on the allegation that defendant personally used the car as a deadly or dangerous weapon
in the commission of the offense. (§12022, subd. (b)(1).) The trial court sentenced
defendant to a term of 15 years to life.
         Defendant did not testify at trial. However, the prosecution sought to introduce
portions of two out-of-court statements he had made while in custody. Defendant, in

         1
             Subsequent undesignated statutory references are to the Penal Code.
turn, moved to introduce other portions of those statements under Evidence Code section
356, the rule of completeness. The trial court granted defendant’s motion. In response,
the prosecution moved to introduce defendant’s prior convictions and bad acts to impeach
his credibility. The trial court granted the prosecution’s motion.
       On appeal, defendant contends the trial court erred by admitting evidence of his
prior convictions and bad acts for the purpose of impeaching his hearsay statements.
Defendant alternately frames his claim as one of ineffective assistance of counsel for his
trial counsel’s request to admit defendant’s exculpatory statements, thereby opening the
door to impeachment evidence. Second, defendant contends the trial court erred by
failing to instruct the jury on manslaughter as a lesser included offense. Third, he
contends the trial court erred by failing to clarify the phrase “unlawful intent” in response
to a question from the jury seeking clarification of an instruction on excusable homicide
as the result of accident or misfortune.
       We conclude defendant’s claims are without merit, and we will affirm the
judgment.
                        I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense
       In 2009, defendant, then 20 years old, lived at his grandfather’s house on
Thainwood Way in San José.2 On the evening of January 19, neighbors saw defendant
“doing donuts” in the street with his grandfather’s car. Defendant drove away after
striking a fence, but soon returned on foot and retreated into his grandfather’s house
while neighbors gathered outside. He subsequently exited the house, got into his
grandfather’s Honda Civic parked in the driveway, and drove the car across a neighbor’s
front lawn. In doing so, he struck and killed Donna Fife, one of the neighbors. He then
drove away from the scene. Police detained him several hours later.


       2
           All dates occurred in 2009 unless otherwise specified.

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       1. Testimony of Adnan Rasheed
       Adnan Rasheed lived across the street from Donna Fife’s house on Thainwood
Way. At around 11 p.m. on January 19, Rasheed heard the sound of tires squealing. He
went outside and saw a lot smoke. A black car was “doing donuts” (driving in circles).
Rasheed identified defendant as the driver. After defendant made the last donut, he drove
down Thainwood Way. He attempted to make another donut but lost control of the car
and struck a fence. Defendant then drove the car back up Thainwood, turned onto
another street, and drove away. Rasheed walked down the street to look at the fence. He
saw a hole in the fence, and a fender or a bumper lodged in the fence. Five or six
neighbors came out of their houses to look at the fence. Rasheed called 911 and reported
the number of the license plate on the bumper lodged in the fence. He told police
defendant was the driver.
       As Rasheed was walking back toward his house, he saw defendant lurking behind
a van. Rasheed approached defendant and said: “What the hell are you doing?”
Defendant responded: “What the fuck you talking about.” Defendant ran toward his
grandfather’s house. The neighbors were yelling at defendant, and they were
“exchanging words back and forth.” Rasheed went back into his house to put on some
more clothes.
       Rasheed came back out of his house about five minutes later. He returned to the
area of the fence where the bumper was lodged. A number of neighbors had gathered
there. They had been waiting for the police for about 15 minutes, and Rasheed was
getting frustrated. Rasheed saw defendant peeking out from a window of his
grandfather’s house. Rasheed called 911 again and told the dispatcher that defendant had
gone into his grandfather’s house.
       Rasheed then saw defendant exit the house and approach a Honda Civic parked in
the driveway. The front of the car was facing the garage door of the house. Defendant
did not get into the car at that point, and instead went back into the house. Defendant

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came out of the house a second time and again returned back into the house. Defendant
then came out of the house a third time and got into the Honda. His grandfather
(hereafter Grandfather) came out of the house after him and tried to get the car keys back.
Grandfather got behind the car, but the neighbors yelled at him to move away because
defendant was backing out, so Grandfather got out of the way. Rasheed then heard
Donna Fife say: “[W]e are sick and tired of this, but we have to get his license plate
number.”
       Defendant backed halfway into the street and stopped, such that only the back end
of the car was in the street. There was nothing behind him to block him from going
completely into the street. Rasheed heard defendant “mumble[] a lot of things,” but the
last thing Rasheed heard was “I’m going to get you.” Defendant then accelerated
forward. Donna Fife was standing in the middle of the neighbor’s front yard when
defendant struck her. The car was going straight toward her, and defendant was
accelerating at the time. He did not try to turn away or swerve to miss her. Fife’s body
went underneath the front of the car. Rasheed could see her head and chest between the
front and rear tires on the driver’s side. He saw the car lurch upwards as it went over
Fife’s body. After defendant drove over her, he “kind of slowed down,” looked back,
and accelerated again. Defendant then drove away down a nearby street. Rasheed went
to tend to Fife and found her in “[b]ad, bad shape” with blood coming out of her eyes,
nose, and mouth. Rasheed and another neighbor called 911 again.
       2. Testimony of Terry Ann Krystad
       Terry Ann Krystad and her husband lived on Thainwood Way at the time of the
offense. They had just finished dinner when they heard a loud noise outside. They went
outside and saw a bumper lodged in a fence across the street. Three or four other
neighbors had gathered outside, including Donna Fife. Krystad called 911 to report a hit
and run. The area was covered by a working streetlight, and there was partial moonlight.



                                             4
Krystad had no difficulty seeing the hole in the fence or the other neighbors who were
standing outside.
       While Krystad and other neighbors were standing by the bumper in the fence, they
saw defendant running down the street toward his house. A young man or an older
teenager was chasing him. Krystad heard another woman tell the young man not to chase
defendant because he would retaliate. The young man caught up with defendant on the
porch of defendant’s house. They fell to the ground and wrestled with each other for a
couple of seconds. Defendant then got up and ran into his house. Krystad and three or
four other neighbors stayed outside, watching defendant’s house. One of the other
neighbors made another call to 911.
       Krystad saw defendant peeking out of a window. The lights were on in the house,
and defendant was looking out from behind the curtains. After three or four minutes,
defendant came out of the house and tried to get into a Honda parked in the driveway.
He could not open the door, so he went back into the house. He then came back out of
the house again and appeared to be more adamant about getting into the Honda. Krystad
heard one of the neighbors say: “He’s trying to leave. We should get his license.”
Donna Fife went into the street to get a better view of the license plate while a couple of
the other neighbors tried to get a view of it from another angle.
       When defendant came out of the house again, he was able to get into the Honda.
He started the car and backed up a short distance. The car was at an angle with the rear
end on the sidewalk. There was nothing blocking him from going back into the street.
His window was down and Krystad could see him clearly. She heard him say, in a
determined tone of voice: “Watch this.” At that point, Krystad moved behind a van and
lost sight of the vehicle. The next thing Krystad heard was a “thud.” When she came
around the side of the van, she could see the Honda on the neighbor’s lawn. Defendant
looked around, drove across the yard onto the street, and drove away. Krystad saw Fife
lying on the ground, moaning.

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       3. Testimony of Richard Delgado Sr.
       Richard Delgado Sr. was defendant’s grandfather. Defendant had lived with
Grandfather for most of his life. When Grandfather came home from work on the day of
the offense, defendant was not home. The black Lincoln that belonged to Grandfather
was also gone. But Grandfather’s Honda Civic was parked in the driveway. After
dinner, Grandfather went to sleep because he had to get up for work at 4:30 a.m. the next
morning.
       Later that evening, defendant woke up Grandfather and told him somebody was
looking at one of the cars. Grandfather did not give defendant any car keys at that point,
but defendant came back a second time, whereupon Grandfather gave him the keys to the
Honda. Defendant went out the front door while Grandfather put on some clothes. When
he went outside, he saw defendant driving the Honda backwards. Defendant backed the
car into the street, but then pulled back into the driveway. Grandfather could see Donna
Fife standing next to a nearby lamppost. Defendant had his headlights on. Defendant
then drove over the neighbor’s driveway and onto their lawn. At that point, Donna Fife
was on the lawn. She then moved in front of the car, “almost like a suicide act.” She was
moving back and forth in front of the car. Defendant hesitated, but then ran over her.
Grandfather saw her body go under the car and come out from underneath the car on the
driver’s side. Defendant stopped, opened the door, looked back, closed the door, and
drove away.
       4. Grandfather’s Prior Interview With Police
       San José Police Officer Brian Spears interviewed Grandfather on the night of the
offense. According to Officer Spears, Grandfather described himself as screaming at
defendant when he (Grandfather) came out of the house. Grandfather told Officer Spears
that defendant backed up the car in the driveway in a “sharp fast” manner. When the car
hit Donna Fife, it made a loud sound that caused Grandfather’s stomach to “jump out.”
At no point did Grandfather tell Officer Spears that Fife was moving back and forth in

                                             6
front of the car. In fact, he told Officer Spears he believed defendant ran over Fife on
purpose.
       5. Testimony of Mark Fife
       Mark Fife, the victim’s husband, testified that he and Donna Fife had lived on
Thainwood Way for almost 25 years. At around 11 p.m. on January 19, he heard
spinning tires and a loud crash outside. Donna told him: “That’s it. I’m not putting up
with this anymore.” She then left the house. After some time, Mark became concerned
that she had been gone too long. When he was about to go outside, he heard someone
running up the sidewalk yelling, “[O]h, my god! He hit his wife.” Mark immediately
went outside and ran to his wife, who was lying on a neighbor’s lawn. Donna was having
a hard time breathing and she could not speak. Her eyes were glazed over, her shoes had
been knocked off, and her clothes were ripped.
       Mark Fife testified about prior incidents of defendant’s reckless driving. One
night, defendant had run over some juniper bushes the Fifes had planted on the corner.
The Fifes filed a police report and confronted defendant the next day. Donna Fife sternly
admonished defendant about the dangers of driving recklessly in a neighborhood full of
children.
       6. Testimony of Riley Jones
       Riley Jones testified that defendant had lived next door to him on Thainwood
Way. Defendant was Jones’ best friend; they spent time together every day. Jones also
shared a jail cell with defendant after defendant was taken into custody for killing Fife.
Jones admitted he had been convicted of numerous felonies, including possession of
stolen property, possession of a firearm, possession of a weapon, auto theft, second
degree robbery, and false imprisonment. In 2011, Jones wrote a letter from jail to the
District Attorney’s office offering to provide information about defendant. Jones hoped
it might help with a case pending against him, but he did not ask for any help in the letter.



                                              7
       Jones testified that defendant had confessed to certain facts about the offense.
According to Jones, defendant told him the following version of events: On the day of
the offense, defendant “went and got high with some of the homies” and drove back to
the neighborhood to do donuts in the street. After he crashed the car, he began walking
back to his house. Donna Fife followed defendant from behind, “questioning him like
what’s the problem, what’s happening, you’re out here doing donuts, this and that.”
Defendant told her to stay out of his business, and they exchanged “heated words.” Fife
continued to follow defendant. According to Jones, “[defendant] just told me that, he
told her, bitch, you still want to follow me? He told me he’s going to kill her, right?”
Defendant then entered his house and retrieved the keys to the Honda from Grandfather’s
room. When defendant exited the house, he backed up the Honda, drove forward, and hit
Fife. After he hit her, he backed over her. He then parked the car and left.
       7. Forensic Evidence and Expert Testimony
       San José Police Officer Kevin Cassidy testified for the prosecution as an expert in
traffic collision investigation reconstruction. He arrived at Thainwood Way several hours
after the offense. Cassidy and other officers mapped out the area, took photographs, and
made measurements to record the location of evidence and the geometry of the scene.
Officer Cassidy paid particular attention to the tire marks left on the ground by the
Honda. He identified a set of tire marks starting on the sidewalk in front of Grandfather’s
house, crossing the driveway, and continuing across the grassy lawns of the houses to the
left. Officer Cassidy testified that the car must have been accelerating throughout its
pathway. He based this conclusion on the rubber deposited on the concrete of the
driveway and grass that had been torn up and thrown backwards. In one of the tire tracks
on the lawn, Officer Cassidy identified a gap large enough to fit a human body. The
ground at that spot was slightly depressed. At the spot where the tire track resumed, the
grass was worn down to the dirt, suggesting the tire was spinning at high speed when it



                                             8
recontacted the ground. Officer Cassidy opined that this gap marked the point where Fife
had been run over by the tires of the car.
       Based on his examination of the front of the car and the coroner’s report, Officer
Cassidy opined that Fife was not standing up straight when she was struck. He opined
that she had either fallen down or was in the process of falling when the car hit her. He
also opined there was no evidence the car stopped, backed up, and then drove forward a
second time. And there was no evidence the driver applied the brakes or tried to stop the
car at any point, or that the driver had lost control of the car.
       Officer Cassidy estimated the car was traveling at around 15 to 20 miles per hour
when it struck Fife. Fife was run over twice—once by the front wheel and once by the
rear wheel. Officer Cassidy testified that, as the vehicle drove over a body the size of
Fife’s body, this would have been “very, very noticeable” to the driver.
       Police tested the Honda Civic’s headlights and determined they were functioning
properly. Officer Cassidy testified that the area was also illuminated by a street lamp.
The distance from the center of Grandfather’s driveway to the point of impact was
approximately 50 feet. Officer Cassidy estimated it would have taken the car about four
to five seconds to travel from the point where the tire treads started on the driveway to
the point of impact. Based on the evidence he had observed, Officer Cassidy opined that
the driver of the Honda Civic intentionally hit Fife.
       In September 2012, Officer Whittington, a criminal investigator for the District
Attorney’s office, took a Honda Civic to the scene of the offense one night at about 10
p.m. He positioned the car on Grandfather’s driveway with the front of the car pointed
left across the neighbor’s lawn. The area was illuminated by street lights and the
headlights of the car. While sitting in the car, Officer Whittington was able to see a
female colleague walking across the neighbor’s lawn. He could see her regardless of
whether his headlights were on. When she lay down on the lawn, Officer Whittington
could still see her, both with and without his headlights on. Officer Whittington then

                                               9
drove the car several feet onto the neighbor’s lawn. He could still see the woman on the
lawn in front of him whether she was walking across the lawn or lying on the ground,
regardless of whether his headlights were on. They repeated the experiment two more
times, each time moving the vehicle forward a few feet. Officer Whittington could still
see the woman in front of him. He did not start to lose sight of the woman until she was
lying on the ground six feet away from the front of the car.
       The parties stipulated that Donna Fife died as the result of blunt force trauma to
her chest. Her injuries were “consistent with at least one wheel of the car rolling over her
chest or back and compressing her ribs and internal organs causing the fractures and
internal trauma observed during her autopsy.”
       8. Prior Incidents of Reckless Driving
       The prosecution presented evidence of five prior incidents of reckless driving by
defendant.
       In March 2006, defendant drove a Toyota RAV4 across a high school soccer field
and onto a set of basketball courts. There were students on the field and the courts at the
time. Defendant then drove through a parking lot and knocked down a fence. A witness
told police the car was traveling at about 35 miles per hour.
       In April 2006, defendant was driving a Mitsubishi Eclipse at about 90 to 100 miles
per hour on Highway 101. A motorist driving a Honda changed lanes, pulling in front of
the Eclipse. Defendant attempted to bypass the Honda by veering onto the shoulder, but
he struck the rear of the Honda, causing the driver to lose control of the car. The Honda
spun out of control and collided with a Dodge Durango in the next lane. The driver of
the Durango, in turn, lost control of his vehicle, whereupon it crossed several lanes of
traffic, veered off the side of the highway, and rolled over. Defendant fled the scene of
the accident on foot, but police later apprehended him, and he admitted to being the
driver of the Mitsubishi Eclipse at the time of the accident. Defendant told police he had



                                            10
gotten the car from “some dudes” who offered it to him on the street. He admitted that
“it’s possible” the car had been stolen.
       In May 2006, police spotted defendant driving a Honda Civic at high speed on
Jackson Avenue in San José. When defendant stopped at an intersection, the police
pulled up next to him. When the light turned green, the Honda “peeled out” and
accelerated at high speed. The police turned on their lights and pursued the Honda.
Defendant accelerated to approximately 70 miles per hour; the speed limit was 35 miles
per hour. As the police continued their pursuit, defendant pulled into the opposite lane,
driving into oncoming traffic. Defendant drove through two red lights and nearly
collided with another vehicle. The police lost sight of the Honda, but subsequently
spotted it again. After the Honda stopped at another light, they were able to pull in front
of it and block it from driving forward. The police pulled defendant out of the car and
took him into custody.
       In July 2006, police saw defendant drive past them in a Mitsubishi pickup truck at
approximately 100 miles per hour on Highway 101. The police pursued the Mitsubishi,
which reached speeds of 105 to 110 miles per hour. Although the police had activated
their lights, the Mitsubishi did not slow down. The truck passed other vehicles on the
highway and used multiple lanes without signaling. After a 28-mile pursuit, defendant
took the Bernal Road exit off of Highway 101 and came to a stop on the shoulder. The
police took him into custody. Defendant smelled of alcohol and displayed signs of
intoxication. Defendant told police he had drunk four 12-ounce beers and smoked a
marijuana cigar. A preliminary alcohol screen showed defendant’s blood alcohol level
was 0.10 percent.
       In June 2008, San José Police Officer Jeff Nichols was dispatched to defendant’s
house on Thainwood Way. Officer Nichols observed several black skid marks on the
road, including a “high intensity skid mark” that appeared to be freshly made. Two tires
on Grandfather’s Lincoln were blown out. Officer Nichols also observed rubber marks

                                            11
on the curb. He opined that one of the Lincoln’s tires had hit the curb, causing it to blow
out on impact. Officer Nichols arrested defendant for reckless driving, hit and run, and
driving without a license. Officer Nichols warned defendant that he could potentially kill
somebody or hurt himself if he continued his dangerous behavior. The prosecution
presented records of misdemeanor convictions for reckless driving and driving without a
license in connection with the incident.
        9. Other Prior Offenses and Bad Acts
        The prosecution presented evidence of several non-driving-related offenses by
defendant. In November 2008, defendant was convicted of felony grand theft for stealing
a bicycle. (§§ 484, 487, subd. (a).) In December 2008, defendant was convicted of
misdemeanor receiving stolen property. In 2012, defendant was convicted of felony
assault and false imprisonment upon his sister. (§§ 245, subd. (a)(1), 236, 237.) The
prosecution presented the complaints and the minutes of the plea hearings to prove the
convictions.
        In March 2010, while defendant was in custody, he assaulted a fellow inmate. A
prison guard testified the assault occurred while escorting inmate Mario Garcia back to
his cell after a shower. While Garcia was handcuffed, defendant reached through the bars
of his cell and slashed Garcia on the face. Garcia suffered a cut across his cheek and
nose.
        Defendant committed a similar assault on another inmate in December 2010. A
prison guard testified the assault occurred while escorting Jesse Madrigal back to his cell
after a shower. Madrigal’s hands were handcuffed behind him. Defendant, who was in
his cell, asked Madrigal if he wanted a copy of a newspaper. When Madrigal turned to
accept the newspaper with his hands, defendant reached through a food tray slot and
grabbed one of Madrigal’s hands. Defendant stabbed Madrigal in the back with a
“homemade shank” and flushed the weapon down the toilet.



                                            12
       Grandfather testified that when defendant was 17 years old, he had been brought
home for a temporary furlough from the “ranch,” a juvenile custody facility. When it
was time to take defendant back to the ranch, he ran away for a few weeks.
   B. Procedural Background
       The prosecution charged defendant by felony information with one count of
murder. (§ 187.) The information included the allegation that defendant personally used
a deadly or dangerous weapon—a car—in the commission of the offense. (§ 12022,
subd. (b)(1).)
       The case first went to trial in March 2012, but the jury failed to reach a verdict and
the trial court declared a mistrial. The second trial began in February 2013. The jury
acquitted defendant of first degree murder but found him guilty of second degree murder.
The jury returned no finding on the deadly weapon allegation. The prosecution moved to
dismiss the allegation; the court granted the prosecution’s motion. The court
subsequently sentenced defendant to a term of 15 years to life.
                                       II. DISCUSSION
   A. Admission of Defendant’s Prior Convictions and Bad Acts
       Defendant did not testify at trial. He contends the trial court therefore erred by
admitting certain evidence of his prior convictions and bad acts. The Attorney General
argues that the trial court properly admitted the evidence for the purpose of impeaching
hearsay statements defendant had made to his sister and Grandfather. Defendant argues
that the statements the prosecution sought to impeach were not exculpatory, and therefore
could not justify the admission of his prior bad acts. He further argues that admission of
the evidence violated Evidence Code section 352 because the prejudicial effect of the
evidence substantially outweighed its probative value. Defendant alternately frames his
claim as one of ineffective assistance of counsel.
       We conclude the statements the prosecution sought to impeach contained
exculpatory claims. Accordingly, the trial court did not abuse its discretion by admitting

                                             13
evidence of defendant’s bad acts under Evidence Code sections 788 and 1202. (People v.
Jacobs (2000) 78 Cal.App.4th 1444 (Jacobs)). Furthermore, the record shows trial
counsel’s request to admit defendant’s statements was a deliberate tactical choice;
therefore, we find no merit to the claim of ineffective assistance of counsel.
       1. Factual Background
       Admission of the prior bad acts evidence was premised on the admission of two
out-of-court statements defendant made while he was in custody: a jailhouse
conversation he had with Grandfather, and a letter he wrote to his sister.
       On the day after the offense, while defendant was in custody, police recorded a
jailhouse conversation between defendant and Grandfather. When Grandfather asked
defendant what had happened, defendant told him: “Grandpa don’t talk about nothing,
Grandpa. Don’t talk about nothing like that.” Similarly, defendant told Grandfather:
“[D]on’t talk to no cops about nothing. We need a lawyer. Just don’t—don’t talk about
nothing.” Defendant then made a number of statements inculpating himself in the
offense. Among other things, he stated that when he had arrived home the previous
evening, “there was a whole bunch of people out and around there” who were “yelling a
whole bunch of stuff at me.” He told Grandfather, “What’s done is done,” and “I can’t
take back what happened, all I can do is tell you I’m sorry.” When Grandfather
expressed hope the victim had not died, defendant said: “They’re already dead,” and “I
killed somebody grandpa.” Defendant told Grandfather that the police investigating his
case were homicide detectives, and he added: “That’s what they’re trying—that’s what
they’re trying to tell—that’s what they’re trying to pin on me. A murder. I don’t know,
well I’m stuck.”
       Grandfather asked defendant why the neighbors were “throwing stuff” at him.
Defendant responded: “I didn’t know what was going on. All I know is that right when I
walked up there, those people was saying, ‘Hey, what’s up cuzz, what’s up cuzz?’ and
after––like they were just trying, just trying to like—like trying—just trying to like mess

                                             14
with me. Like there were like five people up there.” Grandfather told defendant he
should have called the police, and defendant responded: “I didn’t think somebody was
gonna lay [sic] down in the freaking street.”
       In June 2009, while defendant was still in custody, he wrote a rambling, semi-
literate letter to his younger sister, who had attempted suicide. Police recovered the
letter. Much of the letter consisted of descriptions of the poor conditions under which
defendant had been raised, together with lamentations over his life as a prisoner. Among
other things, defendant wrote: “Now I[’]m a fuck’n killer wit no more get back.”
Similarly he wrote, “I[’]m facen [sic] murder.”
       2. Procedural Background
       The prosecution moved in limine to admit inculpatory portions of both statements
as admissions of a party opponent. In response, defendant argued under Evidence
Code section 356 (the rule of completeness) that exculpatory portions of the jailhouse
conversation between defendant and Grandfather should also be admitted. Similarly, as
to defendant’s letter to his sister, defendant argued it would be misleading to introduce
only some portions of the letter without admitting the rest of the letter for context. The
trial court agreed with defendant and ruled the complete letter would be admitted under
Evidence Code section 356, except for portions of the statements discussing possible
penalties. As to the conversation with Grandfather, the court also agreed with defendant
and ruled that specific portions of the conversation requested by defendant would be
admitted.
       The prosecution then moved orally and in writing to introduce evidence of
defendant’s prior convictions and bad acts under Jacobs, supra, 78 Cal.App.4th 1444.
The prosecution argued that because defendant had sought to introduce portions of his
own out-of-court statements, the prosecution was entitled to impeach their credibility
under Evidence Code section 1202. Defendant opposed the motion on the ground that
the statements he sought to introduce were not exculpatory, and that, under People v.

                                             15
Fritz (2007) 153 Cal.App.4th 949 (Fritz), Evidence Code section 1202 did not make his
prior bad acts admissible. The trial court granted the prosecution’s motion under Jacobs,
supra, and People v. Little (2012) 206 Cal.App.4th 1364 (Little), subject to a limiting
instruction that the evidence could only be considered to evaluate the credibility of
defendant’s statements.
       At trial, the prosecution played an audio recording of defendant’s jailhouse
conversation with Grandfather, and the jury was provided with a transcript. Defendant’s
letter to his sister was also admitted, but with references to potential penalties redacted.
Evidence of defendant’s prior convictions and bad acts was also presented to the jury as
set forth above in Section I.A.9. The court instructed the jury that the evidence was
“offered for the purposes of determining credibility only. If you find that a witness or
person who made a statement outside of court committed certain crimes or other
misconduct, you may consider that fact only in evaluating the credibility of that person.
The fact that a witness or a person who made the statement outside of court may have
committed misconduct does not necessarily destroy or impair that person’s credibility. It
is up to you to decide the weight of that fact and whether that fact makes the witness less
believable or not.”
       In closing argument, counsel for defendant contested the prosecution’s claim that
defendant had intentionally driven over Fife. Counsel argued that defendant was simply
trying to get away from a hostile crowd of neighbors yelling at him, and that he did not
see Fife. Counsel specifically quoted defendant’s statement to Grandfather that he did
not know someone was going to “lie down in the street.” The prosecution challenged the
credibility of this statement and argued that defendant was trying to manipulate
Grandfather into staying on his side. The prosecution pointed to defendant’s prior
convictions and bad acts to support the claim that defendant was lying in an effort to
manipulate Grandfather.



                                              16
       3. Legal Principles
       Evidence Code section 788 provides, in part: “For the purpose of attacking the
credibility of a witness, it may be shown by the examination of the witness or by the
record of the judgment that he has been convicted of a felony . . . .” (Evid. Code, § 788.)
Evidence Code section 1202 provides, in part: “Evidence of a statement or other conduct
by a declarant that is inconsistent with a statement by such declarant received in evidence
as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the
declarant though he is not given and has not had an opportunity to explain or to deny
such inconsistent statement or other conduct. Any other evidence offered to attack or
support the credibility of the declarant is admissible if it would have been admissible had
the declarant been a witness at the hearing.” (Evid. Code, § 1202.) “Taken together,
sections 1202 and 788 seem to provide that evidence of prior felony convictions is
admissible to attack the credibility of a hearsay declarant.” (Jacobs, supra,
78 Cal.App.4th at p. 1449.)
       Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” “When evidence
of prior offenses is presented to a jury, there is inherent danger of prejudice to an
accused. Therefore, such evidence should be received with caution and admitted only
when its probative value outweighs its prejudicial effect.” (People v. Evers (1992)
10 Cal.App.4th 588, 599.)
       We review the admission of evidence under the aforementioned rules for abuse of
discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295; People v. Guerra (2006)
37 Cal.4th 1067, 1113 [overruled in part on other grounds in People v. Rundle (2008)
43 Cal.4th 76, 151].)



                                             17
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.”
(People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984)
466 U.S. 668, 687-688, 693-694.) “ ‘Tactical errors are generally not deemed reversible;
and counsel’s decisionmaking must be evaluated in the context of the available facts.
[Citation.] To the extent the record on appeal fails to disclose why counsel acted or
failed to act in the manner challenged, [the appellate court] will affirm the judgment
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation . . . .” ’ ” (People v. Hart (1999) 20 Cal.4th
546, 623-624 (Hart).)

       4. Admission of the Evidence Under Evidence Code Sections 788 and 1202 Was
          Not an Abuse of Discretion
       On appeal, defendant specifically challenges the admission of the following
convictions and prior bad acts: (1) Grandfather’s testimony that when defendant was
17 years old he failed to return to a juvenile custody facility after coming home for a
furlough; (2) testimony that defendant had stolen the Mitsubishi Eclipse involved in the
April 2006 reckless driving incident; (3) court records proving defendant’s convictions
for reckless driving and driving without a license in connection with the June 2008
incident; (4) court documents proving defendant’s convictions for assault and false
imprisonment upon his sister, grand theft of a bicycle, and receiving stolen property;
(5) testimony about defendant’s assault on fellow inmate Jesse Madrigal in December
2010; and (6) testimony about defendant’s assault on fellow inmate Mario Garcia in
March 2010. Defendant does not contest the premise that this evidence would have been


                                             18
admissible for impeachment purposes if he had testified. Nor does he contest the holding
of Jacobs, supra, that prior convictions and bad acts may be admissible to impeach the
credibility of a defendant as a hearsay declarant when the defendant seeks to introduce
his own exculpatory hearsay statements. Rather, defendant contends there was no valid
basis for impeachment because the portions of his statements he offered into evidence
were not exculpatory. The Attorney General argues that the statements defendant sought
to admit were exculpatory, and that his prior acts were therefore admissible under Jacobs
to impeach his credibility.
       In Jacobs, supra, 78 Cal.App.4th 1444, Jacobs and a codefendant were charged
with receiving stolen property. The codefendant sought to admit part of a statement
Jacobs made to police wherein Jacobs admitted owning the car in which the stolen
property was found. Jacobs moved under Evidence Codes section 356 to admit the rest
of his statement, wherein he gave an innocent explanation for how he came into
possession of the stolen property. The prosecution objected to the latter part of the
statement. After the trial court admitted the entire statement, the prosecution sought to
impeach Jacobs’ credibility by introducing evidence of his prior felony convictions. The
trial court granted the prosecution’s motion, and the jury subsequently found Jacobs
guilty. The Court of Appeal affirmed Jacobs’ conviction. (Jacobs, supra, 78
Cal.App.4th at p. 1454.) The court held that Jacobs’ prior convictions were admissible
under the combined scope of Evidence Code sections 788 and 1202. (Id. at p. 1446.)
Other courts have found this reasoning persuasive. (Little, supra, 206 Cal.App.4th at
p. 1367; cf. Fritz, supra, 153 Cal.App.4th at p. 956 [holding of Jacobs was not applicable
because only the prosecution—not the defendant—sought to introduce defendant’s
hearsay statements].)
       We find no basis in the record to distinguish Jacobs from the present case. We
disagree with defendant’s claim that the portions of the statements he sought to introduce



                                            19
were not exculpatory.3 Defendant’s defense focused on attacking the element of intent.
He characterized his act of exiting his house and driving away in the Honda solely as an
attempt to escape from the group of neighbors gathered outside. His jailhouse statements
to Grandfather—that the neighbors were questioning him and “trying to like mess with
me”—supported this version of events. More significantly, defendant told Grandfather,
“I didn’t think somebody was gonna lay [sic] down in the freaking street.” Defense
counsel specifically quoted this statement in closing argument as evidence that defendant
did not intentionally run over Fife.
       Defendant’s letter to his sister also contained some exculpatory statements. Much
of the letter consisted of regret for the things defendant had done and excuses for his own
behavior based upon his poor upbringing. As trial counsel recognized, the full context of
the letter substantially softened the inculpatory force of the statement introduced by the
prosecution, in which defendant described himself as a “killer wit no more get back.”
The prosecution also argued, among other things, that defendant was guilty of murder
under an implied malice theory of intent—commonly called “depraved heart murder.”
As the court instructed the jury, implied malice requires a finding that a defendant
“deliberately acted in conscious disregard for human life.” The jury could have inferred
from defendant’s statements of regret that he did not kill Fife with a depraved heart.
       Because defendant introduced his own exculpatory hearsay statements into
evidence, the prosecution was entitled to impeach him with his prior convictions under
Evidence Code sections 788 and 1202. We thus conclude the trial court did not abuse its
discretion by admitting evidence of defendant’s prior convictions and bad acts.




       3
        In some parts of his brief, appellate counsel also refers to portions of the
statements as “arguably exculpatory.”

                                             20
       5. Admission of the Evidence Did Not Violate Defendant’s Federal Due Process
          Rights
       Defendant argues the evidence was also admitted as propensity evidence in
violation of his federal due process rights under the Fifth and Fourteenth Amendments.
As defendant acknowledges, however, “[e]vidence introduced by the prosecution will
often raise more than one inference, some permissible, some not; we must rely on the
jury to sort them out in light of the court’s instructions. Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due process.”
(Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
       Here, the jury was instructed it could only consider the prior convictions and bad
acts for the purposes of evaluating defendant’s credibility. Defendant argues that the jury
must have been confused by this instruction, but he cites nothing in the record to support
this assertion. In closing argument, defendant put forth his own statements as evidence of
his state of mind, and the prosecution referred to the prior convictions to challenge the
credibility of these statements. As set forth above, the jury was permitted to use the
evidence to assess defendant’s credibility, and nothing in the record suggests the jury did
otherwise. We conclude this claim is without merit.

       6. Admission of the Evidence Was Not an Abuse of Discretion Under Evidence
          Code Section 352
       Defendant contends the admission of evidence of his prior convictions and bad
acts constituted an abuse of discretion under Evidence Code section 352 because the
prejudicial effect of the evidence substantially outweighed its probative value. In pretrial
hearings, the trial court weighed the probative value of the evidence against any potential
prejudice. The court then set forth its conclusions under Evidence Code section 352.
The court admitted the evidence, but excluded certain evidence as unduly prejudicial,
such as the claim that defendant had raped his unconscious sister. The court concluded




                                             21
the remaining evidence was sufficiently probative to justify its admission given its
relevance to the credibility of defendant’s statements.
       We agree the evidence was probative. And although evidence of prior convictions
and bad acts carries some potential to induce prejudice, defendant has not shown that the
conduct introduced into evidence here was so prejudicial that it substantially outweighed
its probative value. We conclude the trial court did not abuse its discretion by admitting
the evidence under Evidence Code section 352.
       7. Trial Counsel Did Not Provide Ineffective Assistance of Counsel
       Defendant contends his trial counsel provided ineffective assistance by seeking to
admit defendant’s statements and thereby opening the door to the admission of his prior
convictions and bad acts. But the record of the pretrial hearings makes clear that counsel
understood he was opening the door to impeachment by seeking to admit defendant’s
statements. Counsel stated on the record that he wished to introduce defendant’s
statements as evidence of his state of mind. On appeal, defendant acknowledges these
points. The obvious implication is that counsel made a considered tactical decision to put
his client’s exculpatory statements into evidence at the cost of allowing impeachment
evidence to come in. Nonetheless, defendant contends trial counsel did not make “a
rational and informed decision on strategy and tactics . . . .” (People v. Ledesma (1987)
43 Cal.3d 171, 215.) He argues that no reasonable trial lawyer could have believed that
the exculpatory value of defendant’s statements would outweigh the damaging prejudicial
impact of the impeachment evidence.
       We decline to second-guess trial counsel’s tactical choices. “Tactical errors are
generally not deemed reversible . . . .” (Hart, supra, 20 Cal.4th at p. 623.) While we
recognize the potentially prejudicial effect of prior convictions, defendant’s statements
were not without exculpatory value. There was no question defendant drove the Honda
Civic over Donna Fife, thereby killing her. His defense was to challenge the
prosecution’s claim that he did so with malice. His exculpatory statements directly

                                            22
supported this defense strategy. Accordingly, we conclude trial counsel’s tactical choice
to seek admission of this evidence did not fall below the constitutionally required
standard of representation.
   B. The Trial Court’s Refusal to Instruct the Jury on Manslaughter
       Defendant contends the trial court violated his federal due process rights by failing
to instruct the jury on vehicular manslaughter or involuntary manslaughter. He argues
that both of these offenses constituted a lesser included offense of the murder charge.
The Attorney General argues that neither form of manslaughter constitutes a lesser
included offense of murder when the defendant uses a vehicle to commit a homicide. We
find no error in the trial court’s refusal to instruct the jury on manslaughter.
       1. Procedural Background
       The prosecution charged defendant with a single count of murder. (§ 187.) The
information alleged, in relevant part: “On or about January 19, 2009, in the County of
Santa Clara, State of California, the crime of MURDER, in violation of PENAL CODE
SECTION 187, a Felony, was committed by RICHARD ANTHONY DELGADO III
who did unlawfully and with malice aforethought, kill Donna Fife, a human being.”
       During in limine motions, the parties litigated the issue of whether the trial court
should instruct the jury on vehicular manslaughter or involuntary manslaughter as lesser
included offenses.4 Defendant argued that the trial court should instruct the jury on
manslaughter under either subdivision (b) [involuntary manslaughter] or (c) [vehicular
manslaughter] of section 192. The prosecution opposed any such instructions on the
ground that these lesser included offenses do not apply when a vehicle is used to commit
a homicide. The trial court denied defendant’s request and refused to instruct the jury on
either theory of manslaughter. Based on the language of section 192 and cases

       4
        As defendant notes, the trial court in the first trial instructed the jury on
involuntary manslaughter. The prosecution subsequently argued the instruction should
not have been given.

                                              23
construing it, the court concluded that neither involuntary manslaughter nor vehicular
manslaughter is a lesser included offense of murder when the offense is committed with a
vehicle.
       2. Legal Principles
       Involuntary manslaughter and vehicular manslaughter are two separate and
distinct offenses. Subdivision (b) of section 192 defines the offense of involuntary
manslaughter and further provides that “[t]his subdivision shall not apply to acts
committed in the driving of a vehicle.” Subdivision (c) of section 192 defines the offense
of vehicular manslaughter under three separate subdivisions, each of which requires the
element of “driving a vehicle” as part of the offense.
       “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence.” (People v. Breverman
(1998) 19 Cal.4th 142, 162.) Case law sets forth two tests to determine whether a lesser
offense is necessarily included in a greater offense: the statutory elements test, and the
accusatory pleading test. “[A] lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser.” (People v. Birks (1998)
19 Cal.4th 108, 117.) “We apply the independent or de novo standard of review to the
failure by the trial court to instruct on an assertedly lesser included offense.” (People v.
Cole (2004) 33 Cal.4th 1158, 1218.)
       3. The Trial Court Properly Refused to Instruct the Jury on Manslaughter
       As a general matter, manslaughter can be a lesser included offense of murder.
(People v. Berryman (1993) 6 Cal.4th 1048, 1080 [overruled on other grounds by People
v. Hill (1998) 17 Cal.4th 800].) However, vehicular manslaughter cannot be a lesser
included offense of murder under the statutory elements test. This is so because the
offense of vehicular manslaughter includes the element of driving a vehicle, which is not

                                                24
an element of murder. Therefore, by killing a victim without using a vehicle, one can
commit murder without committing vehicular manslaughter. (See People v. Sanchez
(2001) 24 Cal.4th 983, 989 [gross vehicular manslaughter while intoxicated is not a lesser
included offense of murder because it requires proof of elements not required to prove
murder].)
       In his opening brief, defendant contends vehicular manslaughter is nonetheless a
lesser included offense of murder in this case under the accusatory pleading test. He
contends the prosecution inserted the element of driving a vehicle in the charged offense
because the information included an enhancement allegation that defendant personally
used a car as a deadly and dangerous weapon in the commission of the offense. The
Attorney General argues that elements alleged as part of an enhancement must be
disregarded for the purposes of the accusatory pleading test. In his reply brief, defendant
concedes the point.
       Defendant’s concession is well-taken. The law is settled that special allegations
add nothing to the accusatory pleading test. (People v. Wolcott (1983) 34 Cal.3d 92, 100-
102.) Because the charge of murder set forth in the information alleged defendant’s
conduct generally, without mention of a vehicle, vehicular manslaughter is not a lesser
included offense under the accusatory pleading test.
       Nor can involuntary manslaughter be a lesser included offense of murder when a
defendant drives a vehicle in the commission of the murder. The plain language of the
subdivision defining involuntary manslaughter provides that “[t]his subdivision shall not
apply to acts committed in the driving of a vehicle.”
       Based on the evolution of the statute and its legislative history, defendant argues
that the Legislature did not intend to eliminate the possibility of involuntary manslaughter
as a lesser included offense of vehicular murder. When construing a statute, however,
“ ‘we begin with the words of a statute and give these words their ordinary meaning.’



                                             25
[Citation.] ‘If the statutory language is clear and unambiguous, then we need go no
further.’ ” (People v. Sinohui (2002) 28 Cal.4th 205, 211.)
       Here, the plain language of the statute is unambiguous; we have no occasion to
resort to extrinsic aids in determining the Legislature’s intent. The statute clearly and
unambiguously eliminates the offense of involuntary manslaughter when the act is
committed in the driving of a vehicle. This construction of section 192 is further
supported by the case law. (See People v. Ferguson (2011) 194 Cal.App.4th 1070, 1082
[although involuntary manslaughter is usually a lesser included offense of murder, in the
context of drunk driving it is not].) For these reasons, we find this claim without merit.
   C. The Jury’s Request for Clarification of the Meaning of “Unlawful Intent”
       The trial court instructed the jury in accord with CALCRIM No. 510 on excusable
homicide as the result of accident or misfortune. Among other things, the jury requested
clarification of the meaning of the phrase “unlawful intent” as used in the instruction.
The trial court declined to provide the requested clarification. Defendant contends the
trial court erred in doing so. We agree with defendant that the court should have
provided clarifying instructions to the jury, but we conclude its failure to do so was
harmless.
       1. Procedural Background
       The trial court instructed the jury as follows: “The defendant is not guilty of
murder if he killed someone as a result of accident or misfortune. Such killing is excused
and therefore not unlawful if: 1. The defendant was doing a lawful act in a[] lawful way;
2. The defendant was acting with usual and ordinary caution; and 3. The defendant was
acting without any unlawful intent. [¶] A person acts with usual and ordinary caution if
he or she acts in a way that a reasonably careful person would act in the same or similar
situation.”




                                             26
       During its deliberations, the jury sent the following two questions to the court:
“Instruction #510, does it have to met [sic] all three to be an act of accident or
misfortune. Can you please explain in laymen terms #3.”
       The parties agreed that the first question should be answered in the affirmative.
As to the second question, the trial court initially proposed to instruct the jury that
“without any unlawful intent” “means the defendant was acting with a lawful intent and
without the intent or mental state required for murder.” The instruction would then refer
the jury back to the previously given instructions defining the requisite levels of intent for
murder. Defendant agreed with the proposed instruction. The prosecution objected to
this instruction and requested the court to instruct the jury that “[a] defendant acts with
unlawful intent when he acts with the intent to commit any crime. The unlawful intent in
the third element may be any unlawful intent including, but not limited to, intending to
assault someone with a car, intending to temporarily or permanently deprive someone of
their car, intending to leave the scene or collision without notifying the owner of the
damaged property and intending to drive without a license . . . .” The court rejected this
proposed instruction based on People v. Anderson (2011) 51 Cal.4th 989, 997-998
(Anderson).
       After further argument, the trial court changed course and decided not to provide
further clarification. The court sent a written note to the jury stating, in part: “You are
correct, all three of the circumstances listed in instruction 510 must be present to
constitute accident or misfortune. Regarding circumstance No. 3, the law does not allow
me to supplement the instructions with information on this issue.”
       2. Legal Principles
       Section 1138 provides, in part: “After the jury have retired for deliberation, if
there be any disagreement between them as to the testimony, or if they desire to be
informed on any point of law arising in the case, they must require the officer to conduct
them into court.” (§ 1138.) “The court has a primary duty to help the jury understand the

                                              27
legal principles it is asked to apply. [Citation.] This does not mean the court must
always elaborate on the standard instructions. Where the original instructions are
themselves full and complete, the court has discretion under section 1138 to determine
what additional explanations are sufficient to satisfy the jury’s request for information.”
(People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court “must at least consider how it
can best aid the jury. It should decide as to each jury question whether further explanation
is desirable, or whether it should merely reiterate the instructions already given.” (Ibid.)
“A violation of section 1138 does not warrant reversal unless prejudice is shown.” (Ibid.)
       3. Any Failure to Further Instruct the Jury Was Harmless
       The instruction at issue here was sufficiently ambiguous to warrant further
clarification. On its face, the instruction’s reference to “without any unlawful intent”
does not make clear whether the lack of unlawful intent pertains solely to the offense
charged, or whether the defendant must not harbor any kind of unlawful intent with
respect to any potential offense. The ambiguity in the language is underscored by the
failure of the parties below to agree on its meaning. No layperson could reasonably be
required to ascertain what experienced lawyers could not.
       We also note the Attorney General concedes the law is clear that the phrase
“without any unlawful intent” refers to the defendant’s intent with respect to the
commission of the charged offense. (Anderson, supra, 51 Cal.4th at pp. 997-998.) The
trial court should have answered the jury’s question accordingly. The trial court’s failure
to do so, however, was harmless.
       Defendant argues he was prejudiced because the instruction pertained to the issue
of intent, and the evidence did not overwhelmingly establish that he intentionally killed
Fife. This argument ignores the other elements of the instruction: that defendant was
doing a lawful act in a lawful way, and that he was acting with usual and ordinary
caution. The jury could not have found the killing to be excused under the instruction
without concluding that these other two conditions were also met. No rational jury could

                                             28
have concluded that defendant’s actions—accelerating a car across a neighbor’s lawn late
at night while multiple neighbors stood around the area—constituted a lawful act done in
a lawful way “with usual and ordinary caution.” Because the jury initially did not
understand they were required to find all three elements of the instruction, it is
understandable they inquired about the third element. But once the jury was properly
instructed that it had to find all three elements were met to find the killing excused, any
error relating to the third element was rendered harmless under any standard of review.
       For these reasons, we conclude this claim is without merit. And finally, as to
defendant’s claim of cumulative error, we find no other error contributing any potential
prejudice. Accordingly, we will affirm the judgment.
                                      III.   DISPOSITION
       The judgment is affirmed.




                                             29
                                               _________________________
                                               MÁRQUEZ, J.


We concur:




_________________________
RUSHING, P. J.




_________________________
WALSH, J. *




H039723
People v. Delgado




      *
       Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
