Filed 11/20/13 P. v. Lozano CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B244012

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA384481)
         v.

ALFONSO DURAN LOZANO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Affirmed.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.
                                    ______________________________
       Alfonso Duran Lozano appeals his conviction, after a jury trial, of second degree
murder and gross vehicular manslaughter while intoxicated. We affirm.
                                      BACKGROUND
       An amended information filed August 21, 2012, charged Lozano with the murder
of Michael Garcia in violation of Penal Code section 187, subdivision (a)1 (count 1), and
gross vehicular manslaughter while intoxicated in violation of section 191.5,
subdivision (a) (count 2). Regarding count 2, the information alleged that Lozano had
three prior convictions within the meaning of section 191.5, subdivision (d). Lozano
pleaded not guilty and denied the allegations.
       A jury found Lozano guilty on both counts. The court sentenced Lozano to 15
years to life on count 1, and 10 years on count 2, with the latter sentence stayed under
section 654. No finding was made on the alleged prior convictions. Lozano was ordered
to pay fines and fees as well as victim restitution, and received custody credits. He filed
this timely appeal.
       At trial, Trynett Walker, a supervisor for the Metropolitan Transit Authority,
testified that at 4:00 a.m. on May 12, 2011 she was driving a white MTA vehicle
eastbound on 6th Street in downtown Los Angeles, approaching the intersection with Hill
Street. Sixth Street was one-way eastbound, and she was in the third lane from the left;
the light on Hill Street was green. Walker looked to her right and noticed a SUV driving
northbound on Hill Street at a high rate of speed without slowing down. Walker slowed
down and was able to stop completely before fully entering the intersection; she still had
the green light. The SUV continued going north, and a motorcycle on Walker’s left side
and driving at about the same speed continued into the intersection. The SUV hit the
motorcycle, which struck a fire hydrant and then hit a pillar, going halfway up the pillar
and exploding. Walker stayed in her vehicle and called for an ambulance.
       Los Angeles Police Department (LAPD) Sergeant Guillermo Urrutia testified that
he was on his way to work at 4:00 a.m. on May 12, 2011, also driving eastbound on 6th

       1   All further statutory references are to the Penal Code unless otherwise indicated.

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Street toward a green light on Hill Street behind a white MTA vehicle, with a motorcycle
on his left side. The MTA vehicle in front of him stopped in the intersection. Sergeant
Urrutia also slowed down and stopped. He saw a SUV going northbound on Hill Street
run the red light and hit the motorcyclist, who was sent into a fire hydrant (which sheared
off at the base) and then was pinned against a building. Sergeant Urrutia got out of the
car, verified that the MTA vehicle driver was calling in the accident, and went over to the
motorcyclist, who appeared dead. Sergeant Urrutia then approached the SUV. Both
doors were locked, and an unconscious Lozano was in the passenger seat, lying against
the passenger side door with his feet on the driver’s side and across the center console.
Both airbags had inflated, the windshield was damaged, and Lozano’s forehead was
bleeding. Sergeant Urrutia did not open the SUV doors. After paramedics arrived and
took Lozano out of the SUV, Sergeant Urrutia noticed his ankles were deformed. The
parties later stipulated that Lozano had broken both legs above the ankle.
       LAPD Officer James Arredondo was a collision investigator who responded to the
scene of the accident. The dead motorcyclist was identified as Michael Garcia. Officer
Arredondo determined that the lights were working properly, and that the SUV was
traveling northbound, failed to stop at the red light at 6th Street, and collided with the
motorcycle. The SUV made no skid marks, which meant it did not brake to try to stop.
       Another LAPD officer who searched the SUV found in the right front door pocket
documents related to Lozano’s previous convictions for driving under the influence and
his participation in educational programs for convicted individuals, including a
Department of Motor Vehicles letter revoking his license. The officer did not find or
book any car keys.
       LAPD Officer Pablo Palma testified that he went to the hospital to check on
Lozano, and immediately noticed a strong odor of alcohol in the room. Lozano had
bloodshot, watery eyes and his speech was slurred. Officer Palma placed Lozano under
arrest for driving under the influence. Samples of Lozano’s blood were taken at
7:15 a.m. and 8:28 a.m. A LAPD criminalist who analyzed the blood samples testified
that they showed blood alcohol contents of .191 and .193 percent. A driver’s skills would

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be impaired at a blood alcohol level of .08 percent, and Lozano would have been
impaired at the time of the accident, with a blood alcohol content of approximately .21
percent.
       Katrina Ponce, a case manager at Northeast Valley Health Corporation, testified
that Lozano had been her client and had twice participated in court-mandated
rehabilitation programs for offenders convicted of driving under the influence. Ponce
had met with Lozano about 30 times while he participated in programs that included an
assessment, 26 group meetings, 26 face to face sessions, 26 self-help groups, and six
education groups. The programs included information about the laws governing driving
under the influence. Lozano had participated in a program showing videos of accidents
resulting from driving under the influence and featuring a walk through the morgue to
view dead bodies. The warning given in court to those convicted of driving under the
influence included statements that being under the influence impairs the ability to drive
safely, that it is dangerous to human life to drive while under the influence, and if an
individual continued to drive under the influence and someone was killed as a result, the
individual could be charged with murder.
       Certified documents showed that Lozano had been convicted for driving under the
influence in 2005 and 2007, and two times in 2010.
       The defense presented no witnesses. Defense counsel argued to the court that the
jurors needed a separate instruction that the prosecution must prove that Lozano was the
driver of the SUV. The court denied the request, stating that it was clear from the
existing instructions that the prosecution must prove beyond a reasonable doubt that
Lozano committed an act that caused the death of Garcia, and if Lozano was merely a
passenger then he did not commit an act causing Garcia’s death.
       In closing, defense counsel argued that the jury did not have to decide whether
Lozano was under the influence or acted with implied malice: “Impairment, not an issue,
don’t even have to decide whether or not he was impaired. Now this one is a big one:
implied malice, not an issue, don’t have to decide that either, forcing you in this case [sic]
that drinking and driving is dangerous. None of those are issues.” The jury did not have

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to worry about the instructions regarding murder or lesser offenses, because the
prosecutor “had to prove to you that he was the driver, and this is where it gets
interesting.” There was no evidence that Lozano was the driver of the SUV. No witness
testified that he or she saw Lozano driving. The circumstantial evidence was that Lozano
was found alone in the car, but he was on the passenger side rather than in the driver’s
seat, and the prosecution presented no evidence to explain his position. The passenger
airbag had deployed, and there was no evidence that it would have deployed if there was
no passenger, and the exhibits showed the passenger seat reclined, maybe “because you
had somebody riding in the passenger seat who was so drunk that they couldn’t even sit
up straight.” Lozano had broken both legs, and the passenger side was more heavily
damaged. The driver could have bolted from the car after the accident. Further, the
missing ignition key supported a theory that the driver removed the key before fleeing. If
the jury believed it was reasonable to conclude that Lozano was a passenger, they could
not convict him. In rebuttal, the prosecution argued that the only reasonable conclusion
was that Lozano was the driver.
                                      DISCUSSION
I.     Former section 22, subdivision (b) does not violate Lozano’s constitutional
rights to due process and equal protection.
       Lozano argues at length that former section 22, subdivision (b) violated his
constitutional rights to due process and equal protection. That section (now renumbered
as section 29.4, subdivision (b)) provides: “Evidence of voluntary intoxication is
admissible 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.” The jury was instructed,
consistent with CALCRIM No. 625, that voluntary intoxication was not a defense to any




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offense charged in this case. This was because the prosecution relied exclusively on a
theory of implied malice2 rather than express malice.
       Former section 22 was amended in 1995 to preclude the use of evidence of
voluntary intoxication to negate implied malice aforethought. (People v. Martin (2000)
78 Cal.App.4th 1107, 1114.) “The 1995 amendment to section 22 results from a
legislative determination that, for reasons of public policy, evidence of voluntary
intoxication to negate culpability shall be strictly limited. We find nothing in the
enactment that deprives a defendant of the ability to present a defense or relieves the
People of their burden to prove every element of the crime charged beyond a reasonable
doubt, including, in this case, knowledge. [¶] Accordingly, we find no due process
violation.” (Id. at p. 1117.) The statute has survived both due process and equal
protection challenges, and is “part of California’s history of limiting the exculpatory
effect of voluntary intoxication and other capacity evidence. [Citations.]” (People v.
Timms (2007) 151 Cal.App.4th 1292, 1300–1302.) CALCRIM No. 625 is consistent
with the statute, and “correctly states the law regarding voluntary intoxication.” (People
v. Turk (2008) 164 Cal.App.4th 1361, 1381, italics omitted.) As the Fourth Appellate
District recently explained at length, the constitutionality of former section 22,
subdivision (b) is supported by Montana v. Egelhoff (1996) 518 U.S. 37 [116 S.Ct. 2013,
135 L.Ed.2d 361], and by the California appellate courts following that case to find that
defendants’ rights to due process and equal protection are not violated by not allowing
voluntary intoxication to negate implied malice. (People v. Carlson (2011) 200
Cal.App.4th 695, 707–708.) We agree with the reasoning of those cases.3


       2 The jury was instructed it could find implied malice if it concluded that Lozano
“intentionally committed an act,” “the natural and probable consequences of the act were
dangerous to human life,” “at the time he acted, he knew this act was dangerous to human
life,” and “he deliberately acted with conscious disregard for human life.”
       3 The defense theory at trial, as expressed in closing argument, was that the
prosecution had not proved that Lozano was driving the SUV that struck and killed
Garcia, so that implied malice was not an issue. Nevertheless, we do not agree with the
respondent that because of this defense argument, even if there had there been error in the

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II.    The jury was properly instructed on implied malice.
       Lozano argues that the instructions on implied malice were contradictory and
confusing, allowing him to be convicted based on a “reasonable person” standard rather
than on a finding that he subjectively knew that his actions were dangerous to human life.
Defense counsel did not challenge the instructions, but we may review instructions given
without objection if Lozano’s substantial rights were affected. (§ 1259.) The instructions
were correct in law and did not affect Lozano’s substantial rights.
       The jury was instructed as follows regarding count 1, murder: “To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
committed an act that caused the death of another person; AND [¶] 2. When the
defendant acted, he had a state of mind called malice aforethought. [¶] There are two
kinds of malice aforethought, express malice and implied malice. [¶] Proof of either is
sufficient to establish the state of mind required for murder. [¶] The defendant acted
with express malice if he unlawfully intended to kill. [¶] The defendant acted with
implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and
probable consequences of the act were dangerous to human life; [¶] 3. At the time he
acted, he knew his act was dangerous to human life; AND [¶] 4. He deliberately acted
with conscious disregard for human life. [¶] Malice aforethought does not require hatred
or ill will toward the victim. It is a mental state that must be formed before the act that
causes death is committed. It does not require deliberation or the passage of any
particular period of time. [¶] An act causes death if the death is the direct, natural, and
probable consequence of the act and the death would not have happened without the act.
A natural and probable consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a consequence is natural
and probable, consider all of the circumstances established by the evidence.”




instruction regarding implied malice, it would have been harmless. The prosecution’s
theory relied on implied malice, and the jury found Lozano guilty of murder.

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       These instructions are not contradictory or confusing. They tell the jury that to
find Lozano guilty of murder, they must find beyond a reasonable doubt that he
committed an act that caused death, and that causation could be found if death was the
“natural and probable consequence” of the act (that is, if a reasonable person would know
death would likely happen). The instructions also required the jury to find that Lozano
subjectively knew at the time that he committed the act that it was dangerous to human
life, and he deliberately acted with conscious disregard for human life. The act (driving
while under the influence) “caused” Garcia’s death if a reasonable person would know
death would likely result from driving while under the influence; but the jury also was
told it must find that Lozano (not a hypothetical reasonable person) subjectively knew
that driving while under the influence was dangerous to human life, and that Lozano
deliberately acted, consciously disregarding that risk. Under the instructions as given, the
jury could separate the causation issue from the question of Lozano’s subjective
knowledge of the danger and his deliberate disregard of that danger.
       No instructional error occurred.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                 JOHNSON, J.
We concur:


              MALLANO, P. J.


              ROTHSCHILD, J.




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