Filed 12/18/14 P. v. Cross CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B253331
                                                                            (Super. Ct. No. F482473)
     Plaintiff and Respondent,                                                (Los Angeles County)

v.

JERAD SCOTT CROSS,

     Defendant and Appellant.



         Jerad Scott Cross appeals from the judgment entered after a jury convicted him of
second degree murder (Pen. Code, §§ 187(a), 189); gross vehicular manslaughter while
intoxicated (Id., § 191.5(a)); driving with a suspended license (Veh. Code, § 14601.1(a));
and possession of a pipe used for smoking a controlled substance. (Health & Saf. Code,
§ 11364.1.) Appellant was sentenced to prison for 15 years to life.
         The second degree murder conviction arose from a vehicular homicide and was
based on an implied malice theory. Appellant contends that the evidence is insufficient
to support the jury's finding of implied malice. He also contends that the trial court made
several erroneous evidentiary rulings. We affirm.
                                               Prosecution Evidence
         At about 9:00 a.m. on a sunny day in November 2012, a flagman stopped traffic
on a highway in a construction area. The flagman had a paddle with a stop sign on one
side and "SLOW" on the other side. Several warning signs on the highway gave advance

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notice that road work was ahead and drivers should be prepared to stop. A tractor-trailer
stopped and a Chevrolet pickup truck stopped behind it. A pickup truck driven by
appellant did not stop. It did not even slow down. The flagman testified that appellant's
truck "appeared to be going over the speed limit" of 55 miles per hour. In a vain effort to
get appellant's attention, the flagman frantically waved his paddle back and forth. ~
Appellant's truck crashed into the rear of the Chevrolet. The force of the collision pushed
the Chevrolet underneath the tractor-trailer. The driver of the Chevrolet died at the scene.
       Appellant broke his ankle. While transporting him to a hospital, paramedics found
a glass pipe in his possession. Residue in the pipe tested positive for methamphetamine.
At the hospital, appellant told a police officer that he had used the pipe to smoke
methamphetamine. Appellant also said that between 4:00 and 5:00 that morning he had
taken "oxycontin for pain management and Xanax for anxiety." Based on appellant's
physical symptoms, the officer formed the opinion that he "was under the combined
influence of a central nervous stimulant and a narcotic analgesic." The stimulant was
methamphetamine. The narcotic analgesic was oxycontin. Appellant told a nurse that he
was taking Xanax, marijuana, methamphetamine, and oxycodone.
       The parties stipulated that appellant's urine sample had tested "positive for opiates
[oxycodone], benzodiazepines [Xanax], methamphetamine, and marijuana." They further
stipulated that appellant's blood sample had tested negative for alcohol.
       A toxicologist testified that Xanax is an "antianxiety medication" and a "quite
powerful" sleep aid. The Xanax level in appellant's blood was high - .22 milligrams per
liter. The toxicologist opined that this Xanax level alone would make it unsafe to drive.
One would have to take at least 20 milligrams of Xanax to reach this level unless one
were using it in an unconventional way, "such as melting it down, shooting it up or
snorting it after they've crushed the pills." Doctors typically start patients at a dose of .5
milligrams "and then gradually raise them up, but . . . it's recommended not to exceed ten
milligrams in one day." If one were taking six milligrams per day, one's "steady state
level" would be .06 milligrams per liter.


                                               2
       Appellant had a prescription for Xanax directing him to take a single two-
milligram tablet by mouth three times a day - a total of six milligrams per day. If he had
followed the prescription, he should have had a steady state level of .06 milligrams per
liter. His actual level of .22 milligrams per liter was more than three times this amount.
       The toxicologist opined that the level of oxycodone was "slightly over what you
would expect for someone taking it therapeutically" and "would have a combined central
nervous system depressant [e]ffect with the [Xanax]." "[T]hen you throw in the
methamphetamine, which on face value would have a tendency to offset some of the
depressant effects of these two other drugs. However, what that does at a cellular level is
causes confusion in the body and an individual is less attentive to their actions . . . ."
       In May 2008, more than four years before the collision, appellant was arrested for
driving under the influence of drugs. Appellant told the arresting officer that he had
"crushed up a Xanax and snorted it." The parties stipulated that after his arrest appellant's
urine sample had tested "positive for amphetamines, benzodiazepines, cocaine and
opiates." In August 2008 appellant's driver's license was suspended for failure to appear
in court on the charge of driving under the influence of drugs. The suspension was still in
effect when the collision occurred in November 2012.
                                      Defense Evidence
       Appellant testified as follows: His friend, Devin Graham, was originally driving
the truck that collided with the Chevrolet. The truck belonged to Graham's employer.
Appellant "wasn't planning on driving."
       Graham was falling asleep, so he asked appellant to drive. Appellant "was
hesitant" to do so. He was tired and knew that his driver's license had been suspended.
But appellant decided that it was better if he drove than if Graham drove. Appellant "felt
fine when [he] got behind the wheel," but after about 30 minutes he started to feel tired.
He "dozed off a couple times." He was "falling asleep, waking up, falling asleep, waking
up." Appellant did not pull over and rest because Graham "was running late."




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       The last time appellant looked at the speedometer, the truck was traveling at 50 to
55 miles per hour. When the collision occurred, he was asleep. He therefore did not
apply the brakes or take evasive action to avoid the collision.
       That morning appellant took oxycodone and Xanax. He "snorted" the Xanax
because it "works faster" when he snorts it than we he takes it by mouth. Appellant knew
that these drugs made him sleepy. He also knew that, if he drove after taking these drugs,
"it could be dangerous." But he "didn't ever know [he] could kill somebody." In
addition, appellant knew that he "shouldn't take those drugs and then drive because [he
was] arrested for doing that in 2008." Appellant admitted that, because of the drugs, he
had fallen asleep at the wheel before the collision.
       The previous evening, appellant smoked methamphetamine but did not smoke
marijuana. He smoked marijuana "three or four, five days a week." He did not smoke
marijuana or methamphetamine during the morning before the collision.
              Prosecution of Vehicular Homicide as Second Degree Murder
       "Murder is the unlawful killing of a human being . . . with malice aforethought."
(Pen. Code, § 187, subd. (a).) "[M]alice may be implied when a person, knowing that his
conduct endangers the life of another, nonetheless acts deliberately with conscious
disregard for life. [Citations.]" (People v. Watson (1981) 30 Cal.3d 290, 296 (Watson).)
In Watson our Supreme Court "created [a] theory for prosecuting vehicular homicide as
second degree murder in cases involving implied malice. [Citation.]" (People v.
Doyle (2013) 220 Cal.App.4th 1251, 1266, fn. 4.) The Watson court reasoned: "[A]
finding of implied malice depends upon a determination that the defendant actually
appreciated the risk involved, i. e., a subjective standard. [Citation.]" (Watson, supra, 30
Cal.3d at pp. 296-297.) Accordingly, when the driver's conduct in a vehicular homicide
case "can be characterized as a wanton disregard for life, and the facts demonstrate a
subjective awareness of the risk created, malice may be implied. [Citation.] In such
cases, a murder charge is appropriate." (Id., at p. 298.) "Wanton" has been defined
as "[u]nreasonably or maliciously risking harm while being utterly indifferent to the
consequences." (Black's Law Dict. (9th ed. 2009) pp. 1719-1720.)

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                                Sufficiency of the Evidence
       Appellant contends that the evidence is insufficient to "support a finding that [he]
had the implied malice necessary for a murder conviction." Appellant asserts: "There
must be proof that the driver actually appreciated but consciously ignored the life-
threatening risks of his or her conduct. Such proof was missing in this case."
       " 'The record must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] . . . A reversal for insufficient evidence "is
unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient
substantial evidence to support' " the jury's verdict. [Citation.]' [Citation.]" (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
       Viewing the evidence in the light most favorable to the prosecution, we conclude
that substantial evidence supports the jury's finding of implied malice. Appellant drove
despite knowing that he was tired and that his license had been suspended. That morning
he had snorted Xanax instead of taking it by mouth as prescribed. His Xanax level was
more than three times greater than what it would have been had he taken the prescribed
dose by mouth. Appellant knew that Xanax and oxycodone, which he had also ingested
that morning, made him sleepy. He was aware that, if he drove after taking these drugs,
"it could be dangerous." Although appellant denied smoking methamphetamine that
morning, it is reasonable to infer that he smoked it. Appellant tested positive for
methamphetamine, and he carried a pipe for smoking it. Appellant was aware that he
"shouldn't take those drugs and then drive because [he was] arrested for doing that in
2008." While driving he kept "falling asleep, waking up, falling asleep, waking up."
Despite repeatedly dozing off at the wheel, he decided not to pull over and rest because
his friend, Graham, "was running late." Based on these facts, a reasonable trier of fact
could conclude beyond a reasonable doubt that appellant "actually appreciated the risk

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involved" and acted with "a wanton disregard for life . . . ." (People v. Watson, supra, 30
Cal.3d at pp. 297, 298.)
       The above facts belie appellant's claim that "[t]here are no facts in this case which
would differentiate [his] mental state from that of anyone else driving under the influence
of drugs for the purpose of whether he had sufficient malice for murder." We disagree
with appellant that, "if this record supports a finding of implied malice, then every
alcohol or drug-related vehicular manslaughter case would be a murder case."
                                     Evidentiary Rulings
                                               I
       Appellant argues that the trial court erroneously "admitted three kinds of evidence
regarding [his] prior driving history: (1) evidence that appellant had received five
speeding tickets; (2) evidence that he had been involved in three non-injury accidents;
and (3) evidence that [in May 2008] he had been arrested on suspicion of driving under
the influence of narcotics." "We review for an abuse of discretion the trial court's rulings
on the admissibility of evidence. [Citation.]" (People v. McCurdy (2014) 59 Cal.4th
1063, 1095.)
       The trial court did not abuse its discretion. Evidence that a defendant committed a
prior act is admissible "when relevant to prove some fact (such as . . . knowledge . . .)
other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
It is reasonable to infer that the five speeding tickets made appellant aware of his
obligation to drive within the speed limit. Evidence was presented that appellant had
been speeding at the time of the collision. The flagman testified that appellant "appeared
to be going over the speed limit" of 55 miles per hour. Another witness, Daniel
Villalobos, testified that about two miles before the site of the collision, appellant's truck
travelled across double lane lines to pass Villalobos's truck. At that time, Villalobos was
driving at 55 or 56 miles per hour in a construction zone. It is reasonable to infer that,
regardless of who was at fault, the three prior traffic accidents made appellant aware of
the dangers inherent in driving and the necessity of staying alert in order to avoid a
collision. Finally, as appellant testified, his May 2008 arrest for driving while under the

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influence of drugs made him aware that he "shouldn't take those drugs and then drive."
That appellant had not been convicted of the offense did not diminish the relevance of the
arrest.
                                               II
          Appellant argues that, pursuant to Evidence Code section 352, the trial court
erroneously refused to exclude evidence of his driving history because its "unduly
prejudicial effect . . . 'clearly outweighed its probative value.' [Citation.]" 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 . . .
create substantial danger of undue prejudice . . . ." "We review a challenge to a trial
court's choice to admit or exclude evidence under section 352 for abuse of discretion.
[Citation.] We will reverse only if the court's ruling was 'arbitrary, whimsical or
capricious as a matter of law. [Citation.]' [Citation.]" (People v. Branch (2001) 91
Cal.App.4th 274, 282.)
          The trial court did not abuse its discretion under Evidence Code section 352. The
evidence of appellant's driving history was highly probative and "was [far] less
inflammatory than the testimony about the charged offense[]." (People v. Quang Minh
Tran (2011) 51 Cal.4th 1040, 1050.) "This circumstance decreased the potential for
prejudice, because it was unlikely that the jury . . . convicted [appellant] on the strength
of [the] testimony . . . regarding [appellant's driving history], or that the jury's passions
were inflamed by [this testimony]." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
                                               III
          Department of Motor Vehicles (DMV) records indicate that appellant was the
driver "most at fault" in the three prior traffic accidents. Appellant maintains that the trial
court erroneously admitted evidence of these "at fault" determinations. He contends that
the determinations were based on inadmissible accident reports. (Veh. Code, § 20013
["No such accident report shall be used as evidence in any trial, civil or criminal, arising
out of an accident"].) Appellant also contends that the "at fault" determinations are "legal
conclusion[s] that [are] not the proper subject for expert opinion."

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       We agree with the People that appellant's contentions are forfeited because in the
trial court he failed to object on the grounds stated in his contentions. (Evid. Code,
§ 353, subd. (a) [judgment shall not be reversed for erroneous admission of evidence
unless "[t]here appears of record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated as to make clear the specific ground of the
objection or motion"].) During a pretrial hearing on the People's in limine motion to
admit evidence of appellant's driving history, defense counsel objected "that the D.M.V.
document is wholly lacking in information concerning what my client did." At trial
defense counsel made a "no foundation" objection to the admission of the evidence
without specifying why the foundation was deficient. The latter objection was
inadequate on its face: "[W]here the objection is lack of proper foundation, counsel must
point out specifically in what respect the foundation is deficient. [Citations.]" (People v.
Moore (1970) 13 Cal.App.3d 424, 434, fn. 8.)
       Even if appellant's contentions were not forfeited and the trial court had erred, the
error would not have resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b).)
It is not "reasonably probable that a result more favorable to [appellant] would have been
reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) The
People aptly note: "[A]s the defense conceded that appellant was at fault in the fatal
traffic collision, it is inconceivable that he could have been prejudiced by evidence of the
prior 'at fault' determinations."
                                        Disposition
       The judgment is affirmed.
        NOT TO BE PUBLISHED.


                                                         YEGAN, J.
We concur:

              GILBERT, P.J.


              PERREN, J.

                                             8
                                 Jacquelyn Duffy, Judge

                       Superior Court County of San Luis Obispo

                            ______________________________


             Susan B. Lascher, under appointment by the Court of Appeal, for
Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for
Plaintiff and Respondent.




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