Filed 4/23/15 P. v. Tom CA1/3
Opinion following remand from Supreme Court
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A124765
v.
RICHARD TOM,                                                             (San Mateo County
                                                                          Super. Ct. No. SC064912)
         Defendant and Appellant.


In re RICHARD TOM,                                                       A130151

         on Habeas Corpus.                                               (San Mateo County
                                                                          Super. Ct. No. SC064912)



         On the evening of February 19, 2007, defendant Richard Tom, while driving at a
high rate of speed, broadsided a vehicle driven by Loraine Wong as she was making a left
turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong’s two
daughters, Kendall (aged 10) and Sydney (8) were riding in the rear passenger seat.
Sydney died as a result of injuries sustained in the collision. Kendall survived, but
sustained serious injuries. As a result of the collision, defendant was charged with gross
vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), driving under
the influence causing harm to another (Veh. Code, § 23153, subd. (a)), and driving with a
blood alcohol level of 0.08 percent or higher causing harm to another (Veh. Code,
§ 23153, subd. (b)). Defendant pleaded not guilty to all charges. After a lengthy trial, the



                                                             1
jury acquitted defendant of all alcohol-related charges but returned a guilty verdict on
gross vehicular manslaughter as a lesser included offense of gross vehicular manslaughter
while intoxicated. The trial court sentenced defendant to an aggregate term of seven
years, consisting of the middle term of four years on his conviction for gross vehicular
manslaughter, plus a term of three years for the personal infliction of great bodily injury
on Kendall as a sentence enhancement (Pen. Code, § 12022.7). In addition, the court
ordered defendant to pay restitution in the sum of $147,860.82.
       In case No. A124765, defendant appeals the judgment imposed following his jury-
trial conviction. He asserts multiple grounds for reversal, including deprivation of
constitutional rights, prosecutorial misconduct, improper admission of opinion testimony,
prosecutorial failure to disclose exculpatory evidence, ineffective assistance of counsel,
and sentencing error. In case No. A130151, defendant petitions for a writ of habeas
corpus on the grounds of ineffective assistance of counsel and prosecutorial misconduct.
       In our earlier opinion, we concluded that the prosecution had violated defendant’s
Fifth Amendment privilege against self-incrimination by proffering testimony of his post-
arrest, pre-Miranda silence as consciousness of guilt evidence. (People v. Tom (Mar. 19,
2012, A124765, A130151 (consol.) [nonpub. opn.] at p. 2 (Tom I).) Because we
concluded the error was not harmless, we reversed the judgment and remanded the matter
for further proceedings consistent with our opinion and we dismissed the writ petition as
moot. (Ibid.) Our Supreme Court granted review, and, in a 4-3 decision, reversed our
decision and held that, as a matter of first impression, defendant was required to
unambiguously invoke his Fifth Amendment right against self-incrimination in order to
rely on that privilege to preclude the admission of his post-arrest, pre-Miranda silence as
consciousness of guilt evidence. (People v. Tom (2014) 59 Cal.4th 1210, 1214 (Tom II).)
Because we had not considered, as a question of fact, whether defendant had
unambiguously invoked his Fifth Amendment privilege, the Supreme Court remanded the
matter with directions that we consider the issue in the first instance and, if necessary, the
other issues raised on direct appeal. (Id. at pp. 1215, 1237.)



                                              2
       Having considered the contentions raised on appeal, we now conclude that the
prosecution’s proffer of evidence of defendant’s post-arrest, pre-Miranda and post-
Miranda silence after he unambiguously invoked his right to remain silent violated both
his federal constitutional Fifth Amendment right against self-incrimination and his
Fourteenth Amendment due process right to a fair trial. We further conclude that the
erroneous admission of evidence was not harmless beyond a reasonable doubt.
Accordingly, on the appeal in case No. A124765, we reverse the judgment and remand
the matter for further proceedings consistent with this opinion. In case No. A130151, we
dismiss the petition for a writ of habeas corpus as moot.

                              FACTUAL BACKGROUND
       At trial the prosecution presented testimony by several police officers who
described the scene at the collision, as well as the events following the collision which
culminated in defendant’s arrest. Other prosecution witnesses included Loraine Wong
and Peter Gamino, a retired police officer and friend of defendant. Gamino was with
defendant during the evening the accident occurred and was driving another vehicle
behind defendant’s vehicle when the collision occurred. There were no third-party
witnesses to the collision and both sides presented expert testimony regarding the speed
of defendant’s vehicle at the time of the collision. We recount pertinent trial testimony
below.1

The Accident
       On the evening of February 19, 2007, Loraine Wong decided to take her
daughters, Sidney and Kendall (ages eight and ten), to her sister’s house in Sunnyvale for
an overnight visit. Wong drove a Nissan Maxima automatic sedan that evening. Kendall
was seated in the rear passenger side of the Nissan and Sidney sat in a booster seat next to



1
       The parties presented expert testimony regarding whether defendant’s blood
alcohol level, measured several hours after the accident, indicated that he was impaired at
the time of the accident. We do not recount any of that expert testimony on blood alcohol
level because defendant was acquitted on the alcohol related offenses.


                                             3
Kendall. Before departing, Wong secured both girls in their seat belts and fastened her
own seat belt.
       Wong took Santa Clara Avenue to Woodside Road enroute to her sister’s home.
Upon reaching the intersection of Woodside Road and Santa Clara Avenue, Wong
planned to turn left and proceed on Woodside Road to the Southbound I-280 on ramp.
Wong drove this route to her sister’s home hundreds of times during the 15 years she
lived on Santa Clara Avenue. As Wong backed out of the driveway, she called her sister
on a hand-held cell phone to let her know “we were on our way to her house.” The
evening was chilly and clear. Wong spoke with her sister for a few minutes until she
came to a full stop at the intersection of Santa Clara Avenue and Woodside Road. Wong
had finished her conversation with her sister but still had the cell phone in her hand. Her
car’s headlights and left-turn indicator were on.
       Wong entered the intersection by inching forward, and looking to her left, she
observed the next cross-street, Alameda de las Pulgas. Wong then looked right and left
again. Seeing no on-coming vehicles in either direction, she eased onto the accelerator
pedal to execute a left turn. As she began to turn she “saw a big flash of light” and was
struck by a vehicle on her left (driver’s) side. Before she saw the flash of light, Wong
heard no sound associated with a car braking or a horn. She did not see headlights to her
left and never saw defendant’s car. Wong estimated she was going about 15 miles per
hour at the time of the collision.
       After the collision, Wong discovered that her daughters were injured. She yelled
their names: Kendall responded, but Sidney did not and never regained consciousness.
Shortly, medical personnel arrived at the scene and extracted Wong and her daughters
from the vehicle. Wong, Sidney, and Kendall were transported to the hospital. There,
Wong was informed that Sidney had died. 2 Kendall sustained a cut to her forehead that


2
        Dr. Tom Rogers, a forensic pathologist, performed the autopsy on Sidney. Rogers
testified that the cause of death was multiple external and internal injuries caused by
blunt force trauma. The injuries were consistent with a child restrained in a booster seat
in a vehicle that was T-boned by a speeding car.


                                             4
required 30-40 stitches, a broken arm and an injury to her neck, and Wong suffered a
broken rib and finger. Wong was released from the hospital on the night of the collision
but Kendall remained in the hospital for a week.
       Retired San Francisco Police Officer Peter Gamino testified that he had known
defendant for about 20 years. On the evening of the accident, Gamino was visiting
California and staying at defendant’s house near Woodside Road. At around 6:00 p.m.
Gamino and defendant had a couple of cocktails before dinner. About an hour later, they
ate dinner and finished in half an hour. After dinner, they drove in defendant’s Mercedes
to defendant’s son’s house in order to pick up a Toyota Camry. After retrieving the
Toyota, they left. Defendant drove his Mercedes and Gamino drove the Toyota. Gamino
followed defendant onto Woodside Road. Gamino was driving at about 40 miles per
hour and about 200 yards behind defendant when he observed “dust and dirt[] all over the
place,” indicating that a collision had occurred. He made a U-turn and circled back to the
collision scene to check on defendant. Defendant was groaning in pain, and said, “I
didn’t even see it.”

Post-Accident Investigation
       Sergeant Alan Bailey and Officer Josh Price of the Redwood City Police
Department were among the first law enforcement officers to arrive at the scene of the
collision and testified at trial. Sergeant Bailey arrived at about 8:30 p.m. and took charge
of coordinating the investigation. He observed that conditions were dry and it was a
“pleasant evening.” Santa Clara Avenue is a two-lane roadway, running east and west,
which intersects Woodside Road, a four-lane roadway running north and south.
Defendant’s Mercedes was a considerable distance north of the Woodside Road/Santa
Clara Avenue intersection. The Mercedes had sustained major front-end damage, the
windshield was cracked, and a couple of tires were flat. The other vehicle involved in the
collision, a Nissan Maxima, had also sustained “major, total damage.” There was
massive intrusion to the Nissan’s left rear passenger door, the entire rear end of the
vehicle was “destroyed,” and the front windshield, the back window, and the left rear



                                              5
passenger window were all shattered. The occupants of the Nissan had been removed
from the vehicle by paramedics by the time Bailey arrived.
       Sergeant Bailey surveyed the scene and tried to figure out how the collision
occurred. Based on the damage to the vehicles, their likely direction of travel and points
of rest in relation to the point of impact, and the very large “debris field,” Sergeant Bailey
concluded that (1) the Mercedes broadsided the Nissan while the Mercedes was traveling
north on Woodside Road and the Nissan was attempting to make a left hand turn onto
Woodside Road from Santa Clara Avenue; and (2) defendant was going “extremely fast,”
and was “not even close” to the posted speed limit of 35 miles per hour when his
Mercedes collided with the Nissan.

Accident Reconstruction Investigation and Expert Testimony At Trial
       Redwood City Police Motor Officer Janine O’Gorman, the lead traffic investigator
for the accident, testified in the prosecution’s case-in-chief. She arrived at the scene at
9:30 p.m. She first walked around the perimeter of the large debris field and made a
visual inspection of the vehicles involved in the collision in order to establish a reference
point and map out the scene. She also observed a gouge mark on the roadway and yaw3
and tire friction marks. Yaw marks began at the point of impact and led straight to
defendant’s Mercedes. Based on the gouge mark and the point at which the yaw and tire
friction marks began, O’Gorman determined the point of impact was at the intersection of
Woodside Road and Santa Clara Avenue. O’Gorman determined that the distance from
the point of impact to the Mercedes was 239.9 feet, and that the Nissan came to rest about
60 feet from the point of impact. There was no evidence of pre-braking tire friction
marks consistent with the Mercedes’ anti-lock braking system, indicating that defendant
did not apply the brakes before the collision.
       On cross-examination, O’Gorman testified that under California’s basic speed law
a driver must drive at a speed that is safe under the conditions. She regularly patrolled


3
       O’Gorman explained that a yaw mark is one made by a tire when the tire is not
turning in the direction in which the vehicle is moving.


                                              6
the stretch of Woodside Road where the collision occurred. On that stretch, drivers
usually exceeded the posted speed limit of 35 miles per hour at night when traffic was
extremely light. Using a radar gun, O’Gorman clocked the average night time driving
speed at 40 miles per hour. Police deemed that speeds of 50 miles per hour and above
were unsafe on that stretch of Woodside Road.
       Officer Jincy Pace, a traffic accident investigator with the San Jose Police
Department, testified for the prosecution as an expert in the area of collision
reconstruction. Based on her review of photos of the collision scene, O’Gorman’s
diagram mapping the scene, and forensic mapping of the crush-depth on the vehicles,
Officer Pace concluded that the operation of defendant’s Mercedes at a speed unsafe for
conditions was the primary factor in the collision.
       To determine the speed of the Mercedes at the point of impact, Officer Pace used a
method known as conservation of linear momentum. Using this methodology, Officer
Pace first calculated the post-impact speed of the Mercedes and then applied what she
considered a “ludicrous[ly]” low drag factor of 0.3 (the equivalent of slamming brakes on
in snow), to account for the fact that the Mercedes was spinning post-impact.4 Officer
Pace opined that defendant’s post-impact speed was 47 miles per hour using “a low drag
factor.” If she applied a drag factor of 0.65, more typical for dry pavement, her estimate
of defendant’s post-impact speed would have been 69 miles per hour. Using the lower
post-impact speed estimate of 47 miles per hour, Officer Pace opined that the speed of
defendant’s Mercedes at impact (pre-impact speed) was 67 miles per hour. She estimated
that the Nissan’s pre-impact speed was 12 miles per hour.
       The defense relied on the testimony of Christopher Kauderer, an expert in accident
reconstruction, to counter the opinions of Officer Pace. Kauderer testified that he was not
permitted to do any destructive testing or examination of defendant’s Mercedes, i.e., not
allowed to take anything apart. As a consequence, Kauderer was unable to conduct a

4
        A drag factor of 1.0 is the equivalent of driving through sand, a drag factor of 0.1
is the equivalent of driving on ice, and the “normal” drag factor used for an asphalt
surface is 0.7-0.8.


                                              7
mechanical inspection of the vehicle’s three major systems, braking, throttle and steering,
to see if there was any pre-existing mechanical condition and to document any effects of
the collision on those systems.
       To determine the speed of the Mercedes at the point of impact, Kauderer opted not
to use the wholesale “drag factor” analysis employed by Officer Pace because assigning a
drag factor to the Mercedes was, in his opinion, too speculative. The drag factor for the
Mercedes was “unknown” because there were too many incalculable variables; in
particular post-impact driver input, such as whether defendant had his “foot on the
accelerator,” steered or braked post-impact. Instead, Kauderer used the principle of
conservation of momentum.5 Employing this methodology, Kauderer opined that the
Mercedes was traveling at 49 to 52 miles per hour and the Nissan was traveling at 7 to 9
miles per hour at impact. Based on his examination of the scene and the vehicles, human
factors in play, as well as forensic mapping and his conservation of momentum analysis,
Kauderer opined the primary collision factor was that the driver of the Nissan entered
into the roadway and violated the right of way of the driver of the Mercedes, leaving the
driver of the Mercedes insufficient reaction time to brake.
       In rebuttal, the prosecution called San Jose Police Officer David Johnson as an
expert in accident reconstruction because Officer Pace was unavailable to testify. Officer
Johnson conducted a visual inspection of the Mercedes and observed that the vehicle’s
front left tire would prevent any post-impact steering by the driver and increase the
Mercedes’ drag factor. He also disagreed with Kauderer’s assumption that the vehicles
5
       The conservation of momentum principle operates on the assumption that the
momentum of the vehicles going into the collision has to equal the momentum of the
vehicles coming out of the collision. Using a drag factor range for the Nissan that was
similar to the range used by the prosecution’s expert, Kauderer applied that range to the
Nissan’s known distance of travel after impact (about 68 feet) to arrive at an estimate of
the Nissan’s post-impact speed of 27 to 29 miles per hour. Next, Kauderer assumed that
both vehicles reached a common velocity during the collision and assigned a separation
velocity (post-impact speed) of 27 to 29 miles per hour to the Mercedes also. Having
determined that the post-impact speed of both vehicles, Kauderer examined the pre- and
post-impact departure angles and the pre-impact approach angles, of both vehicles, to
arrive at the speed at impact.


                                             8
reached a common separation velocity and opined that a 29 miles-per-hour post-impact
speed for the Mercedes was inconsistent with the distance the vehicle traveled after
impact. Finally, Officer Johnson opined that the Mercedes’ fuel pump would have shut
off on impact.

                                       DISCUSSION
I.     Consciousness of Guilt Evidence
       Defendant contends that the testimony of Sergeant Bailey and Officer Price
regarding defendant’s failure to inquire about the welfare of the occupants of the Nissan
was erroneously introduced as substantive evidence of guilt in violation of his Fifth
Amendment privilege against self-incrimination, and his Fourteenth Amendment due
process right to a fair trial, and that the error was not harmless beyond a reasonable
doubt. We agree.
       The record demonstrates that defendant was placed under arrest when the police
transported him from the collision scene in a patrol car to the police station at 9:48 p.m.
About 20 minutes after arriving at the police station and before reading defendant his
Miranda rights, the police requested but defendant declined to give a tape-recorded
statement. In lieu of a taped statement, the police arranged for two officers to witness
defendant’s statement. However, after speaking with his counsel by telephone, defendant
told the officers that he would not give any statement in the absence of counsel. Officer
Price then had defendant take a series of field sobriety tests (FSTs) modified to
accommodate his injured ankle. Based on the results of the FSTs, Officer Price
concluded defendant was under the influence of alcohol at the time of the collision.
Officer Price handcuffed defendant, placed him under arrest for driving under the
influence, and read him his Miranda rights. Defendant said he would not make a
statement.
       In support of his argument that the prosecutor erred in eliciting testimony in
violation of his constitutional right to remain silent, defendant identifies several occasions
during trial when police officers testified he did not inquire about the welfare of the
occupants of the Nissan. To resolve this issue, we need recount only two questions posed

                                              9
by the prosecutor and responses given by Officer Price and Sergeant Bailey. At the end
of the prosecutor’s direct examination of Officer Price, the prosecutor asked whether,
during Price’s contact with defendant from about 8:20 p.m. to approximately 11:30 p.m.
on the evening in question, the defendant ever asked him “about the condition of the
occupants of the Nissan.”6 Price answered, “No.” At the end of the prosecutor’s direct
examination of Sergeant Bailey, the prosecutor also elicited a similar response from him
when he was asked, “So, during any of this time [prior to defendant’s arrest at the police
station], did the defendant ever ask you about the occupants of the other vehicle?”7
Bailey replied, “No, he did not.”
       We conclude, as do the parties, that during the post-arrest pre-Miranda time
frame, defendant unambiguously invoked his right to remain silent when he told the
police that he would not make any statement in the absence of counsel. After he was read
his Miranda rights, defendant again unambiguously invoked his right to remain silent
when he told the police he would not make a statement. Because the prosecutor’s two
questions were not sufficiently focused on the period exclusively before defendant
unambiguously invoked his right to remain silent (post-arrest, pre-Miranda and post-
Miranda), the admission of the testimony constitutes error in violation of defendant’s
federal constitutional Fifth Amendment right to remain silent (see Salinas v. Texas (2013)
570 U.S. __, ___ [186 L.Ed.2d 376, 133 S. Ct. 2174, 2178] (plur. opn. of Alito, J.); Tom
II, supra, 59 Cal.4th at pp. 1225, 1235-1236) and his Fourteenth Amendment due process
right to a fair trial (see Doyle v. Ohio (1976) 426 U.S. 610, 619 (Doyle); People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 118 (Coffman and Marlow)).8



6
       The court overruled defense counsel’s objection to the question on the ground of
relevancy.
7
       The court overruled defense counsel’s objection to the question on the ground of
relevancy after the prosecutor indicated she was seeking to elicit testimony showing
defendant’s “[c]onsciousness of guilt.”
8
       In light our determination, we do not need to address and we express no opinion
on whether during the post-arrest pre-Miranda time frame defendant unambiguously

                                            10
       Nonetheless, the erroneous introduction of evidence of defendant’s silence is trial
error subject to the harmless error analysis standards of Chapman v. California (1967)
386 U.S. 18 (Chapman). (See Arizona v. Fulminante (1991) 499 U.S. 279, 310.) The
Chapman standard “ ‘requir[es] the beneficiary of a [federal] constitutional error to prove
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’ [Citation.] ‘To say that an error did not contribute to the ensuing verdict is . . .
to find that error unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury
actually decided and whether the error might have tainted its decision. That is to say, the
issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to
the error.’ ” (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).)
       On this record, the People have not shown that the verdict rendered in this case
was “surely unattributable to the error.” (Neal, supra, 31 Cal.4th at p. 86.) “[D]efendant
was not apprehended by the police in the course of committing the crime; neither were
there ‘numerous’—or indeed any— ‘disinterested reliable eyewitnesses to the crime
whose testimony [was] confirmed by a wealth of uncontroverted physical evidence.’ ”
(Id. at p. 87.) Indeed, the evidence against defendant in this case was essentially in
equipoise. For example, a key issue at trial was determining the pre-impact speed of
defendant’s vehicle. There was no dispute defendant was traveling faster than the posted
speed limit of 35 miles per hour on Woodside Road. The question for the jury, however,
was whether defendant acted with gross negligence in driving over the posted speed limit,
to wit, whether his conduct displayed an “I don’t care attitude”9 and was so reckless that
it created a high risk of death or great bodily injury. Both sides presented the testimony
of accident reconstruction experts, and each adopted a different methodology in


invoked his right to remain silent prior to the time that he expressly told the police he
would not make any statement in the absence of counsel.
9
       The jury was instructed that “Gross negligence is the exercise of so slight a degree
of care as to exhibit a conscious indifference or ‘I don’t care’ attitude concerning the
ultimate consequences of one’s conduct.”


                                              11
calculating defendant’s speed at impact. The prosecution’s evidence established
defendant’s speed at impact was, at minimum, 67 miles per hour, and possibly much
higher. However defendant’s expert opined defendant’s speed at impact was between 49
and 52 miles per hour, on a stretch of road where drivers routinely exceed the posted
speed limit and police deem speeds of up to 50 miles per hour safe under certain
conditions. Thus the resolution of defendant’s guilt hinged on the jury’s resolution of the
conflicting expert testimony. Without corroboration by eyewitnesses and no physical
evidence, mechanical or recorded, which conclusively determined defendant’s speed at
impact, the jury’s assessment of defendant’s conduct in the aftermath of the collision was
very likely an important and even determinative factor in its verdict. And, thus, the
prosecutor’s entreaty to the jury to consider defendant’s silence as evidence of his guilt
took on added significance.
       During closing argument, the prosecutor vigorously pressed the jury to find
defendant’s speed at impact was reliably determined by its expert. The prosecutor argued
that defendant’s speed, at the time of impact, demonstrated the “I don’t care” attitude
consistent with establishing gross negligence. After asserting that defendant “barrel[ed]
down Woodside at double the speed limit,” the prosecutor rhetorically stated, “Why did
he not . . . at least slow down? . . . Because he was grossly negligent. He was driving
down that night . . . without a care of what was going to happen. I don’t care is the
attitude that he had.” The prosecutor explained to the jury that it could not consider
defendant’s failure to testify, but “should and can absolutely consider [ ] how he acted the
night of the collision. And there’s so much evidence about this. And all of it points to
one thing; his consciousness of his own guilt.” Pressing this theme, the prosecutor added:
“The next one I think is particularly offensive, he never, ever asked, hey, how are the
people in the other car doing? Not once. . . . Now you step on somebody’s toe . . . what
is your first thing out of your mouth? Whoops. I’m sorry. I’m not saying that he has to
say sorry as an expression of his guilt or as some kind of confession, but simply as an
expression of his regret. Look, I’m sorry those people were hurt. [¶] Not once. Do you
know how many officers he had contact with that evening? Not a single one said that,


                                             12
hey, the defendant asked me about how those people were doing. Why is that? Because
he knew he had done a very, very, very bad thing, and he was scared. [¶] . . . And he was
obsessed with only one thing, that is, saving his own skin.” Given the circumstances—an
emotionally charged case, involving the death of one child and serious injury to another,
and hinging on competing theories of accident reconstruction yielding widely different
estimates of defendant’s speed at the point of impact—the prosecutor’s argument urging
the jury to consider defendant’s failure to ask about the welfare of the occupants of the
other car as substantive evidence of his guilt was highly prejudicial. We reject the
Attorney General’s assertion that the prosecutor’s references to defendant’s silence after
he unambiguously invoked his right to remain silent were brief and inconsequential. The
jurors were asked to draw a speculative inference of gross negligence based on
defendant’s failure to inquire about the welfare of the occupants of the other car. (See
People v. Babbitt (1988) 45 Cal.3d 660, 681-682 [evidence allowing only speculative
inferences is irrelevant and inadmissible].) Indeed, the prosecutor went further by in
essence asking “the jury to speculate about ─ and possibly base a verdict upon ─
‘evidence’ never presented at trial” - defendant’s silence in the presence of numerous
officers that he had contact with that evening in addition to Sergeant Bailey and Officer
Price. (People v. Bolton (1979) 23 Cal.3d 208, 212.)
       We also see no merit to the Attorney General’s additional arguments that the
erroneous admission of evidence of defendant’s silence was nonprejudicial error. The
Attorney General asks us to consider that defendant failed to preserve the error for our
review. However, defendant filed a pre-trial motion in limine to exclude statements
obtained without a valid Miranda waiver and while he was under de facto arrest at the
collision scene. This issue is closely related to defendant’s claim on appeal that evidence
of his silence while under de facto arrest and pre-Miranda violated his right to remain
silent under the Fifth Amendment. Additionally, defendant filed a pre-trial motion in
limine to exclude all statements elicited post-Miranda. In all events, Supreme Court
authority allows this court to reach this error, where, as here, defense counsel’s failure to
make a sufficient objection constitutes ineffective assistance of counsel. (See People v.


                                             13
Centeno (2014) 60 Cal.4th 659, 675 [court reversed judgment on direct appeal based on
finding that defense counsel’s failure to object to prosecutor’s prejudicial closing remarks
constituted ineffective assistance of counsel].) As defendant notes, and the Attorney
General does not dispute, there is no possible strategic decision that would support trial
counsel’s failure to object to the admission of evidence elicited in violation of
defendant’s constitutional rights.
       The fact that there was no evidence before the jury that defendant had invoked his
right to remain silent, as the Attorney General notes, is precisely why the proffered
evidence, which allowed the jury to consider defendant’s silence, is “problematic.” (U.S.
v. Waller (3d Cir. 2011) 654 F.3d 430, 438.) Although the inference of guilt arising from
defendant’s failure to inquire about the welfare of occupants of the other car may be
“ ‘natural and irresistible’ to a jury” (ibid), the trial court’s overruling of defense
counsel’s objections gave credence to the testimony and allowed the jury to use
defendant’s silence as substantive evidence against him in violation of his constitutional
right to remain silent. The additional assertion that the prosecutor’s questions largely
focused on the period before defendant invoked his right to remain silent fares no better.
There is no established “threshold quantity of improper questioning to qualify as a
constitutional violation.” (U.S. v. Shannon (3d Cir. 2014) 766 F.3d 346, 359 (Shannon).)
In Shannon, the prosecutor’s questioning of Shannon on cross-examination about his
“pre-arrest and post-arrest silence received roughly the same degree of inquiry.” (Ibid.)
Nonetheless, the Third Circuit found that “[e]ven if the government had, in fact, asked
pages of questions regarding Shannon’s pre-arrest silence, the problem remains that it
also asked inappropriate questions regarding Shannon’s post-arrest silence.” (Ibid.) The
court there found that “the two questions asked by the government regarding Shannon’s
post-arrest silence violated his Fifth Amendment right to silence, as explained in
Doyle.”10 (Shannon, supra, at p. 359.) So, too, in this case, the prosecutor posed one

10
       In Doyle, supra, 426 U.S. 610, the United States Supreme Court held “that ‘the
use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after
receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth

                                               14
question to Officer Price eliciting testimony that while at the collision scene defendant
asked if he could go home but did not then inquire about the welfare of the occupants of
the other vehicle. Although defense counsel lodged no objection to the testimony of
defendant’s pre-arrest silence, and even assuming that evidence was properly before the
jury, the prosecutor also asked two improper questions, one posed to Sergeant Bailey and
one posed to Officer Price, which elicited testimony regarding defendant’s silence after
he had unambiguously invoked his right to remain silent in violation of his Fifth
Amendment right against self-incrimination.
       Accordingly, we conclude that on this record the verdict cannot stand as the
erroneous admission of the evidence of defendant’s silence in violation of his Fifth
Amendment right to remain silent was not harmless beyond a reasonable doubt.
(Compare People v. Esqueda (1993) 17 Cal.App.4th 1450, 1487 [erroneous admission of
defendant’s statements not harmless beyond a reasonable doubt where other evidence of
defendant’s involvement in killing was mainly circumstantial and prosecutor heavily
relied on defendant’s statements to undermine the defense case] with People v. Lewis
(2008) 43 Cal.4th 415, 465-466 [any error in admission of co-defendant’s redacted
statement at joint trial was harmless beyond a reasonable doubt in light of “powerful
evidence supporting the jury’s verdicts . . . and the prosecutor’s minimal use of [disputed]
statement in the relevant portions of his closing argument”].)
II.    Other Issues
       Given our conclusion that the violation of defendant’s constitutional due process
right to a fair trial requires reversal, we need not resolve the other issues raised on appeal,
with one exception. For the guidance of the parties in the event the issue is raised in a
retrial (see People v. Neely (1993) 6 Cal.4th 877, 896), we shall address defendant’s




Amendment.’ ” (Id. at p. 619, fn. omitted.) In Coffman v. Marlow, supra, 34 Cal.4th 1,
our Supreme Court held that Doyle error is committed when silence is used against a
defendant “ by means of the prosecutor’s examination of an interrogating detective even
before the defendant has had the opportunity to take the stand.” (Id. at p. 118.)


                                              15
contention that the jury instructions on gross vehicular manslaughter were legally
deficient.
       The jury found defendant guilty of gross vehicular manslaughter (GVM)11 under
instructions which identified two predicate offenses—violation of the basic speed law
(Veh. Code, § 22350) and reckless driving (Veh. Code, § 23103)12 — at least one of

11
        The jury was instructed using language in CALCRIM No. 592 in the following
manner, in pertinent part: “Gross vehicular manslaughter is a lesser crime than gross
vehicular manslaughter while intoxicated. [¶] To prove that the defendant is guilty of
gross vehicular manslaughter, the People must prove that: [¶] 1. The defendant drove a
vehicle; [¶] 2. While driving that vehicle, the defendant committed a misdemeanor, or
infraction; [¶] 3. The defendant committed the misdemeanor, or infraction with gross
negligence; [¶] AND [¶] 4. The defendant’s grossly negligent conduct caused the death of
another person. [¶] The People allege that the defendant committed the following
misdemeanor and infraction: [reckless] driving and speeding. [¶] Instructions 2200 and
595 tell you what the People must prove in order to prove that the defendant committed
[reckless] driving and speeding. [¶] Gross negligence involves more than ordinary
carelessness, inattention, or mistake in judgment. A person acts with gross negligence
when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great
bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that
way would create such a risk. [¶] In other words, a person acts with gross negligence
when the way he or she acts is so different from how an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for human life or
indifference to the consequences of that act.” The jury was further instructed that it could
not find defendant guilty unless “all of you agree that the People have proved that the
defendant committed at least one of the alleged misdemeanor, or infraction and you all
agree on which misdemeanor, or infraction the defendant committed.”
12
        The jury was instructed using language in CALCRIM No. 2200 in the following
manner, in pertinent part: The People allege that the defendant committed the act of
reckless driving in violation of Vehicle Code section 23103. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant drove a
vehicle on a highway; [¶] AND [¶] 2. The defendant intentionally drove with wanton
disregard for the safety of persons or property. [¶] A person acts with wanton disregard
for safety when (1) he [or she] is aware that his or her actions present a substantial and
unjustifiable risk of harm, and (2) he [or she] intentionally ignores that risk. The person
does not, however, have to intend to cause damage. [¶] If you conclude that the defendant
drove faster than the legal speed limit, that fact by itself does not establish that the
defendant drove with wanton disregard for safety. You may consider the defendant’s
speed, along with all the surrounding circumstances, in deciding whether the defendant
drove with wanton disregard for safety.”


                                            16
which the jury had to find beyond a reasonable doubt. Defendant asserts the standard of
gross negligence defined in the GVM instruction is legally indistinguishable from the
“wanton disregard for safety” standard defined in the reckless driving instruction.
Therefore, according to defendant, the GVM instruction eliminates the requirement that
the prosecution prove the predicate offense of reckless driving.13 We disagree.
       Defendant’s contention fails because it assumes that “gross negligence” as defined
in the GMV instruction is coextensive with the “wanton disregard for the safety of
persons or property” as defined in the reckless driving instruction. However, as the
instructions make clear, “gross negligence” is judged under an objective, reasonable
person standard. (People v. Watson (1981) 30 Cal.3d 290 296 [“[a] finding of gross
negligence is made by applying an objective test: if a reasonable person in defendant’s
13
        Defendant relies on People v. Soledad (1987) 190 Cal.App.3d 74 (Soledad) but the
case has no application here. In Soledad, defendant was convicted of gross vehicular
manslaughter while intoxicated, pursuant to Penal Code section 192, subdivision (c)(3)
(now defined in Penal Code section 191.5). Penal Code section 192 then defined the
offense as driving a vehicle under the influence of alcohol or drugs [in violation of
section 23152 or 23153 of the Vehicle Code] and required as elements “ ‘[d]riving a
vehicle in violation of [Vehicle Code] section 23152 [influence of alcohol or drugs] or
23153 [influence of alcohol and drugs causing bodily injury to person other than driver]
of the Vehicle Code and in the commission of an unlawful act, not amounting to felony,
and with gross negligence; or driving a vehicle in violation of section 23152 or 23153 of
the Vehicle Code and in the commission of a lawful act which might produce death, in an
unlawful manner, and with gross negligence.’ ” (Soledad, supra, at p. 80.) The Soledad
court noted that to prove the offense the prosecution had to show defendant (1) drove a
vehicle in the commission of an “unlawful act” not amounting to a felony with gross
negligence and (2) drove the vehicle in violation of Vehicle Code section 23152 or
23153. (Soledad, supra, at pp. 81-82.) Reversing defendant’s conviction on the ground
of instructional error, the Soledad court concluded “the jury was neither instructed nor
advised at anytime that it must make a finding on the unlawful act element of vehicular
manslaughter,” in addition to finding defendant drove the vehicle in violation of Vehicle
Code section 23152 or 23153. (Soledad, supra, at p. 83.) No such omission occurred
here. The jury was instructed that to prove defendant guilty of gross vehicular
manslaughter, the prosecution had to prove defendant drove the vehicle in the
commission of a misdemeanor or infraction (i.e., an unlawful act not amounting to a
felony) with gross negligence. Thus, the instruction was free of the defect identified in
Soledad because the jury was required to make a finding on the unlawful act element of
the offense.


                                            17
position would have been aware of the risk involved, then defendant is presumed to have
had such an awareness”].) On the other hand, to establish the mental state required to
prove reckless driving, the evidence must establish that defendant acted with a “wanton
disregard for the safety of persons or property” (People v. Schumacher (1961) 194
Cal.App.2d 335, 339), where “wantonness” includes the elements of consciousness of
one’s conduct, intent to do or omit the act in question, realization of the probable injury
to another, and reckless disregard of consequences. (Id. at pp. 338-340; see also People
v. Dewey (1996) 42 Cal.App.4th 216, 221.) Thus, under the instructions, if the jurors
concluded, using the reasonable person standard, that the defendant acted with gross
negligence, they were required to make the additional finding that defendant acted with
the requisite, subjective mental state required for reckless driving. Therefore, the GMV
instructions did not eliminate the predicate offense element of reckless driving and we
reject defendant’s assertion of instructional error.

                                        DISPOSITION
       We realize that the conclusion we reach today will not provide certainty of
outcome for any of the parties impacted by the tragic vehicular accident which occurred
on the evening of February 19, 2007. However, where, as here, a defendant’s right to a
fair trial is prejudiced as a result of a violation of his constitutional rights, our duty is
clear - we are required to reverse the conviction. Accordingly, in the appeal in case
No. 124765, the judgment is reversed and the matter is remanded to the trial court for
further proceedings consistent with this opinion. The petition for a writ of habeas corpus
in case No. A130151 is dismissed as moot.




                                                     _________________________
                                                     Jenkins, J.


We concur:




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_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




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