Filed 6/17/14 P. v. Walker CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135326
v.
BRUCE ALAN WALKER,                                                   (San Mateo County
                                                                     Super. Ct. No. SC70299A)
         Defendant and Appellant.

                                                INTRODUCTION
         Following dinner and drinks, defendant got into his car with a passenger and drove
at a high rate of speed on El Camino Real in Burlingame, passing other cars and causing
his car to spin out, hit a tree, and flip over. Defendant was injured and the passenger was
killed. Defendant’s blood-alcohol concentration (BAC) two and a half hours after the
accident was 0.20 percent, more than twice the legal limit of 0.08 percent. Defendant had
three prior arrests for driving under the influence (DUI) of alcohol. One resulted in a
DUI conviction; another resulted in a conviction for an alcohol-related driving lesser
offense to DUI, and the most recent arrest, involving a single car accident in Wisconsin,
resulted in drunk-driving charges that were dismissed in light of the current prosecution.
         The San Mateo County District Attorney charged defendant with murder and gross
vehicular manslaughter while intoxicated. (Pen. Code, §§ 187, subd. (a), 191.5, subd.
(a).) In a first trial, the jury convicted defendant of gross vehicular manslaughter but
could not agree on the murder charge. The court declared a mistrial and, after a second
trial, defendant was convicted of second degree murder. Defense motions to set aside the
verdict and for a new trial were denied. Defendant was sentenced to state prison for 15
years to life for murder. Sentence for manslaughter was stayed. (Pen. Code, § 654.)
       On appeal, defendant argues reversal of both convictions is required because the
blood test result showing a 0.20 percent BAC was obtained without a warrant. He also
argues the murder conviction should be reversed because the evidence is insufficient to
support that conviction; the second jury should have been told of the vehicular
manslaughter conviction; the instructions on implied malice were internally inconsistent;
and jury misconduct occurred. We affirm.
                                STATEMENT OF FACTS
       On April 11, 2009, at 9:53 p.m., Officer Brett Murphy of the Burlingame Police
Department was dispatched to Howard Avenue and El Camino Real (El Camino) in San
Mateo County to handle a single-car collision. The posted speed limit on that part of El
Camino is 35 miles per hour (mph). Murphy saw a silver Infiniti upside down in the
northbound lanes of El Camino. Defendant was partially ejected from the driver’s
window. The passenger’s side of the car was “severely damaged” from a collision with a
tree. The passenger was restrained, hanging upside down in his seat and not responsive.
He was identified as Daniel White and pronounced dead at 10:12 p.m. at the scene.
       The car was registered to defendant, who lived one and a half blocks from the
scene of the accident. A restaurant, Broadway Prime, was one and a half miles from the
scene of the accident. Murphy determined the car was travelling southbound on El
Camino in the far right lane when the right-side wheels collided with the raised concrete
curb, causing the car to rotate 180 degrees and cross four lanes of traffic before hitting a
Eucalyptus tree. The main point of impact with the tree was between the front and rear
doors on the passenger side of the car. The vehicle hit the tree with enough force that it
spun back and landed on its roof.
       Paramedic Jeff Ver arrived at the scene of the accident at 9:58 p.m. The passenger
was dead, but the driver was alive, so he was extricated from the car by the fire

                                              2
department. When Ver first contacted defendant, he was immobilized on a gurney. Ver
noticed blood and bone fragments on defendant’s head, which he believed came from the
passenger. Ver noted the “heavy smell” of alcohol from defendant. Defendant told Ver
he had a “couple of drinks.” He denied using any drugs that evening. His pulse was
slightly elevated; pupils were normal and reactive to light. He did not complain of pain
and was not bleeding. Ver left the scene to transport defendant to the hospital at 10:09
p.m., arriving at San Francisco General Hospital (SFGH) at 10:27 p.m.
         Burlingame Police Officer Keky Duren learned at the scene that defendant had
admitted drinking and was assigned by her superior to perform the DUI investigation.
While en route to the hospital, she ordered a phlebotomist to come to SFGH to draw
blood. Duren made first contact with defendant at 11:58 p.m. after obtaining permission
from the duty nurse.
         Duren smelled alcohol on defendant at the hospital. His eyes were bloodshot and
watery. After speaking with defendant, she concluded he had been driving the car and
was under the influence of alcohol. At 12:10 a.m., Duren decided to arrest defendant.
She told defendant a blood sample would be needed and defendant replied, “Whatever.”
Duren read to him twice from the chemical test admonition form warning of the
consequences if he refused to provide a sample. At some point between the first and
second reading, she advised defendant that the passenger had been killed. Defendant
became very alert and emotional. At the end of the second reading, defendant replied
“no” to her request to take a blood test.
         Bee Galindo, a paramedic and phlebotomist, brought to the hospital a sealed
blood-testing kit containing two vials for taking blood samples. Galindo verified the
vials in the kit contained a preservative. The preservative prevents contamination of the
blood.
         When Galindo first saw Duren and defendant in the trauma room, defendant was
snoring. He had on an oxygen mask and was hooked up to an electrocardiogram. She

                                             3
waited to do the blood draw until a nurse finished attending to defendant. She made the
draw from the back of defendant’s right hand. She used a sterile non-alcoholic swab to
clean the area. She prepared the vials. She drew the samples at 12:35 a.m. Galindo was
present when defendant said he did not want to submit to a blood test, but he was
physically cooperative during the blood draw. The blood draw was completed without
any technical problems by 12:45 a.m.
       Duren took the vials, placed them in an evidence envelope, and placed the
envelope between her shirt and the steel front plate of her bulletproof vest. That area
does not get hot, and the hospital was cold. Unlike the police station, SFGH does not
have a refrigerated box in which to place evidence. She stayed with defendant at the
hospital until 10:00 a.m. At this time, she drove straight back to the police department
and finally placed the samples in the refrigerated evidence box there. Community Service
Officer Ramzi Mughannam took the vials to the crime lab.
       Forensic pathologist Peter Benson conducted the autopsy of White on April 12,
2009. The deceased had suffered brain injuries, fractured ribs, contusions to the lungs,
and internal bleeding. In Dr. Benson’s opinion, death was caused by blood loss, shock,
and traumatic injuries.
       Several eyewitnesses testified about the collision. Julian Jacobs was driving
southbound on El Camino in Burlingame that night. In his rear view mirror, he noticed a
silver Infiniti “bearing down” on him; Jacobs believed the car “was imminently going to
hit [him] at a very high speed of impact.” Defendant changed lanes to pass Jacobs very
close on the right side. He estimated defendant’s speed as between 60 to 100 mph. He
saw the car brake and switch lanes to avoid hitting another car ahead of Jacobs. Jacobs
came upon the accident and called 911.
       Julia Quinn, Jacobs’s wife, was a passenger in his car. She noticed a car “flew”
past them on the right. The car, a silver sedan, was travelling very fast, at a speed that
“would scare you even on the freeway.” She saw the car come up fast behind another

                                              4
car, brake, and go around it “really close.” Perhaps a minute later, she saw the car
overturned and crashed into a tree.
       Joseph Hegstrom was driving through the intersection of Burlingame Avenue and
El Camino on a green light when he saw a silver Infiniti traveling southbound on El
Camino at a rapid rate of speed, in excess of the speed one would drive on the highway.
He had to accelerate through the intersection to avoid a collision. Hegstrom’s wife,
Marina, who was also in the car, believed the silver Infiniti was moving “really fast for El
Camino,” more than 60 or 70 mph, as it ran the red light at Burlingame. Shortly
thereafter, the Hegstroms looped back around and passed the same car wrapped around a
Eucalyptus tree at Howard Avenue and El Camino.
       Cece Lawrence was stopped at a red light on El Camino at Howard. In her rear
view mirror, she saw a car approaching her very fast. The car passed her so close, she
thought it would hit her. She saw the car change lanes, hit a southbound curb with a
shower of sparks, then spin around into the northbound lanes and hit a tree.
        Another motorist, Edgar Garcia, saw the headlights of a car going southbound on
El Camino bouncing up and down at a high rate of speed. After the car passed him,
Garcia saw sparks coming off the car’s right rear wheel in his rear view mirror. He
watched as the car fishtailed into the northbound lanes; then he heard a crash.
       Ronald Cosgrove, parts and service director at Peninsula Infiniti, testified about
the service records for defendant’s car. In 2007, the dealership’s service shop
recalibrated the cruise control on defendant’s car after an outside body shop did some
repairs and replaced part of the cruise control. In 2008, defendant complained the cruise
control was non-operational, would not engage at times, and would not slow down when
approaching a vehicle. The service shop road-tested the car and found the cruise control
was operational, was working as designed, and did slow down as it a approached a slower
vehicle in front and maintained that speed. A complimentary inspection of the car was
performed and no problems were detected. Based on their maintenance records,

                                             5
defendant’s car did not have any problems with unintended acceleration or the braking
system. The service shop had no complaints from customers about unintended
acceleration, the braking system, or sticky floor mats with the particular model car driven
by defendant.
         Monica Arana had been dating defendant for about six months in April 2009.
They frequently went to bars and restaurants together and drank, but she would not
describe him as a heavy drinker in her presence. Arana knew defendant had prior DUI
arrests and that he had recently been arrested in Wisconsin following a collision which
was perhaps DUI-related. She also knew he had taken classes about driving under the
influence. The relationship ended about a year after the accident.
         On the evening of the accident, Arana and four members of her family met
defendant for dinner at the Broadway Prime restaurant where he used to work. When she
arrived, defendant was in the bar with White having beers. She saw him drink one beer.
At dinner later, defendant ordered two bottles of wine. She believed defendant had one
glass of wine. Defendant left the restaurant at 9:30 p.m. Arana took the car keys from
defendant’s pocket and gave them to White, telling the deceased not to let defendant
drive the car. Defendant advised Arana he was going to meet some friends later that
night.
         Quoc Vuong was the bartender at the restaurant. He served defendant and White
one beer each on the house. Bar records indicate defendant paid for three additional
Heineken beers that night. He also paid for two bottles of wine and six dinners.
         At SFGH, emergency medicine director Dr. John Brown treated defendant.
Brown ordered a blood draw for alcohol at 10:20 p.m. A second draw took place at 3:20
a.m. Both blood samples tested positive for alcohol. The results of the first test were
higher than the results of the second. Brown noted defendant had injuries to his chest,
thorax, right lung, and ribs. Brown found nothing medically improper with taking a
blood sample from a patient who was in defendant’s condition at 12:35 a.m. Nothing Dr.

                                             6
Brown heard on the audiotape of defendant, the police officer, and the phlebotomist
suggested that defendant was endangered by anything the officer or phlebotomist did.
        Amber Quelvog is an emergency room nurse at SFGH. She drew seven vials of
blood from defendant at 10:32 p.m. Hospital records showed a second blood draw was
performed on defendant at 3:30 a.m.
        Alan Wu is the Chief of Chemistry and Toxicology at SFGH. The hospital uses an
enzymatic method involving alcohol dehydrogenase to test whether ethyl alcohol is
present in someone’s blood and, if so, how much is there. The majority of hospitals in
the world use this method. The calibration records for the device used to test defendant’s
blood were within predetermined specifications. The sample of defendant’s blood
received by the lab at 10:37 p.m. on April 11 tested positive for the presence of alcohol,
as did the second sample received at 4:20 a.m. on April 12. The amount of alcohol found
in the first sample was higher than the amount of alcohol found in the second sample.
Defendant did not have lactate acidosis or severe liver disease that could trigger a false
positive alcohol result.
        Semi-retired forensic criminalist Nicholas Stumbaugh testified as an expert on
blood-alcohol testing, the use of the gas chromatograph, the interpretation of blood-
alcohol results, and the effects of alcohol on the human body and the ability to drive. He
tested the blood sample drawn from defendant at 12:35 a.m. using a gas chromatograph.
He reviewed the calibration logs and records for the device he used and determined it was
working properly when he used it. The result of Stumbaugh’s analysis showed that
defendant had a BAC of 0.20 percent. Impairment occurs at a 0.08 percent BAC,
whether a person appears to be drunk or not. Typical impairments include poor
judgment, the inability to do the multitasking required by driving, and short-term memory
loss.




                                             7
          An individual weighing 185 pounds would have to drink the equivalent of 15
drinks to measure 0.20 percent BAC five hours after consumption.1 One 12-ounce
typical American beer, one four-ounce glass of wine, or a one-ounce shot of hard liquor
are drink equivalents. It would take considerably more than two beers and a glass of
wine between 7:30 p.m. and 9:30 p.m. for an individual of that weight to have a BAC of
0.20 percent at 12:35 a.m. Such an individual drinking that amount would have no
detectable alcohol in his or her blood at 12:35 a.m. or 3:00 a.m. On the other hand, if an
individual weighing 185 pounds had a considerable amount of alcohol to drink prior to
7:30 p.m., in addition to three drinks between 7:30 p.m. and 9:30 p.m., he or she could
reach 0.20 percent BAC at 12:35 a.m. Depending on the individual’s drinking pattern, a
person who tested 0.20 percent BAC at 12:35 a.m. would have a BAC at least as high as
0.08 percent and possibly as high as 0.25 percent two hours and 45 minutes earlier at 9:50
p.m. In Stumbaugh’s opinion, hypothetical driving such as that described by the
percipient witnesses to the accident was consistent with an individual driving with a BAC
of 0.08 percent or above.
         Stumbaugh also testified about the process of fermentation that can affect blood-
alcohol testing results. He opined that at room temperature, it would take several days
for significant fermentation to occur. The fact Duren kept the samples on her person
between her shirt and her bulletproof vest for 10 hours did not comport with crime lab
procedures but, in his opinion, did not affect the reliability of the test results, “[b]ecause a
few hours at room temperature, or even at a somewhat elevated temperature, are not
sufficient for significant fermentation to occur, and the sample was refrigerated after that
time up until the time of analysis.” When fermentation does occur, there is a change in
color to brownish-green and an odor of putrefaction. There was no such evidence of
fermentation in defendant’s blood sample when he tested it.


1
    The parties stipulated defendant weighed 185 pounds at the time of his arrest.


                                               8
       Santa Clara County Crime Lab criminalist Francisco Alcantar analyzed a sample
of defendant’s blood for cocaine and benzoylecgonine, an inactive cocaine metabolite.
He used the same vial of defendant’s blood tested by Stumbaugh for alcohol. The results
were positive for benzoylecgonine in the amount of 0.226 micrograms per milliliter.
Presence of benzoylecgonine in the blood indicates the subject who provided the blood
sample recently used cocaine.
       Bill Posey, co-founder of Central Valley Toxicology, an independent lab in
Clovis, California, testified as an expert in forensic toxicology. In April 2010 he
analyzed defendant’s blood from the same sample tested by Stumbaugh and Alcantar.
His analysis detected 0.23 milligrams per liter of benzoylecgonine and 0.09 milligrams
per liter of cocaethylene in defendant’s blood. Cocaethylene is an active metabolite of
cocaine, which means it has the same stimulating property as cocaine. Cocaethylene is
formed in the liver when alcohol is present in the body at the time of the cocaine use.
Cocaethylene enhances the effects of cocaine in that it tends to make the euphoric effect
last longer. Although cocaine is a stimulant, when ingested with alcohol the rebound
effect of the combination actually exacerbates the depressive effect of alcohol
consumption.
       Posey quantified a 0.09 milligrams per liter level of cocaethylene as “a moderate
amount.” An individual with 0.09 milligrams per liter of cocaethylene in his system
would be feeling some of the effects of cocaine use. Posey estimated that if a person
ingested cocaine before 9:50 p.m. and had 0.09 milligrams per liter of cocaethylene in his
system at 12:35 a.m., the amount of cocaethylene in his system at 9:50 p.m. would have
been 0.18 milligrams per liter, or higher. Considering the amounts of both
benzoylecgonine and cocaethylene in defendant’s blood, Posey estimated that defendant
used cocaine within six to eight hours of the blood draw.
       Cocaine’s effects on driving include the tendency to make quick but incorrect
decisions, dilation of the pupils causing night blindness in response to oncoming vehicles,

                                             9
and overcorrection for particular situations such as crossing too many lanes or turning too
sharply. The effects of cocaethylene are similar.
       Posey, like Stumbaugh, did not believe the lack of refrigeration of the blood
sample for 10 hours would result in fermentation of the blood in the sample. “Typically,
about six days is going to be required before you’ll see any major effects on the blood-
alcohol level.”
       Auto accident experts also testified for the prosecution. Raymond Hughes
testified as an expert in automotive engineering and forensic automotive investigation.
He examined defendant’s car in 2010. He found no problems with the throttle body or
the butterfly valve. The acceleration (gas) pedal worked properly. There were no recalls
for defendant’s type of car concerning unintended acceleration. There were no recalls
concerning the braking system. The maintenance record for the car revealed no
abnormalities and his inspection of the car revealed there were no leaks in the brake
piping. The antilock braking system (ABS) was connected.
       Rudy Degger testified as an expert in forensic traffic collision reconstruction.
Based on his observation and analysis of the accident scene and the car involved, he
concluded that the right side wheels of defendant’s car struck the curb. The car then took
an aggressive turn to the left, which caused the car to spin counterclockwise until it hit
the Eucalyptus tree. He opined the car was traveling 56 to 62 mph when it began to spin.
The car bounced away from the tree after hitting it but continued to rotate 180 degrees
and came down on its top about six feet away from the tree. Degger opined it was
unlikely defendant braked during the initial phase of the spin but there may well have
been some braking towards the end of the spin. In his view, the car hit the curb because
it was traveling too fast.
       The jury was presented with several incidents of defendant driving under the
influence of alcohol. On August 9, 1997, Millbrae Police Officer Gaby Chaghouri
observed defendant speeding on El Camino and arrested him for driving under the

                                             10
influence because of his driving, objective symptoms of alcohol intoxication, smell of
alcohol, admission he had been drinking (two beers and a rum and Coke), and
performance on several field sobriety tests. He submitted to a blood test and was
convicted of driving under the influence.
       On February 25, 2001, Burlingame Police Officer Charles Witt observed
defendant speeding and making an unsafe left turn, and arrested him for driving under the
influence. Defendant smelled of alcohol, admitted drinking two glasses of wine, had
watery, droopy eyes, and performed inconsistently on field sobriety tests. Nystagmus
was not present. Defendant submitted to a breath test. He was convicted of an alcohol-
related driving offense, lesser to a DUI.
       On February 16, 2009, two months before this accident, defendant was involved
in a one-car collision in Wisconsin. Law enforcement officers followed a trail of fluid to
a restaurant parking lot where they found defendant loading luggage from a car with body
damage into a taxi. Defendant smelled of alcohol and appeared intoxicated. He admitted
he had been drinking that night. Defendant submitted to a blood draw. The Wisconsin
case was dismissed because of defendant’s arrest and prosecution in the current case.
       Retired California Highway Patrol Officer Vaughn Gates testified as an expert in
drug impairment recognition and driving under the influence of drugs. He testified
cocaine is a central nervous system stimulant. Its ingestion makes a person an aggressive
driver, and impairs driving and visual perception. He cited speeding, making sharp turns,
and getting too close to cars as examples of aggressive driving associated with driving
under the influence of cocaine. Alcohol ingestion depresses the central nervous system,
causing visual impairments, slow reactions, and poor judgment decisions. Combining
cocaine ingestion with alcohol consumption extends the euphoric effect of the alcohol. It
also gives a person the false feeling of not being intoxicated, causing what he called a
“wide-awake drunk.”



                                            11
       Janet Brooke is the lead drug and alcohol counselor at Occupational Health
Services (OHS) in Santa Clara County and was previously employed as a counselor at
OHS in San Mateo County. Her job entailed working with the courts and the state to help
persons convicted of driving under the influence get their driving privileges back. OHS
provides education programs on the dangers of drinking and driving for first-time and
multiple-time offenders.
       Defendant completed the First Offender Program for the first time in August 1998.
Following his conviction on February 25, 2001, defendant again enrolled in a First
Offender Program on July 26, 2001 and completed the 14-hour program on August 29,
2003. Ms. Brooke was his counselor. In the course of that program, he completed a
module on the medical aspects of alcohol and other substances, including cocaine. He
completed another module on the impact of drunk driving on families whose members
have been killed by drunk drivers. He completed another module on impairment and the
laws which informed the students that impaired driving resulting in death can trigger
murder and manslaughter prosecutions.
       In his defense, defendant presented the testimony of one eye witness, pedestrian
Paulina Rencoret, who saw defendant driving the car just before the collision. She
estimated his speed at 40 to 45 mph. Defendant called Officer Duren to testify in
connection with defendant’s digitally recorded statement made at the hospital.
       Defendant also presented several experts who challenged the testimony of the
prosecution’s experts. Dr. Mark Shattuck testified as an expert in accident reconstruction
and analysis of automobiles and the biomechanics of automobile accidents. He opined
that unintentional acceleration would be one reasonable explanation for the car’s
speeding through various trajectory changes, whether or not the driver was sober or
impaired. Deliberate speeding could be another, but it would be unusual. He also
concluded that a clip securing the driver’s side floor mat broke prior to the accident, and
opined that the mat could have moved forward and entrapped the pedals.

                                             12
       Dan Denney is the CEO of a biotechnology company. He testified as an expert on
the effect of microorganisms on human blood samples. Mr. Denney was critical of
Stumbaugh’s conclusions. In particular, he opined the 0.03 difference in BAC’s (0.20
and 0.23 percent) obtained by two different labs from serially drawn samples could only
have been caused by microorganisms. In his view, defendant’s blood sample had been
“grossly mishandled” and “you can’t trust it.” He assumes every blood sample is
contaminated with some type of microorganism. Swabbing with isopropyl before
extracting blood does not kill all the organisms that could contaminate a sample. A
contaminated test tube would not necessarily emit an odor. An appearance of coagulation
of the blood in the test tube would be consistent with contamination of the tube by
microorganisms. The length of time it took the phlebotomist to draw the blood from
defendant’s hand suggested the blood was not drawn from a vein.
       Ken Mark, a forensic toxicologist who owns and operates a lab in Hayward,
testified as an expert in the detection of alcohol in human fluids and the effect of alcohol
in the human body. He received an unrefrigerated sample of defendant’s blood through
first class mail.
       Mark tested the vial for alcohol and preservative levels and found several
problems. He opined that if it took a phlebotomist 10 minutes to complete a blood draw,
the sample may have been drawn from a capillary bed instead of a vein; California
regulations require a venous blood sample. His test yielded a BAC result of 0.23 percent,
which is 15 percent higher than the 0.20 percent BAC result obtained by the original lab.
He considered a difference of 0.03 percent very rare. He agreed the forensic community
accepts a 15 percent discrepancy as a sign that fermentation has occurred.
       Mark also found the vial contained 14.8 milligrams per milliliter of the
preservative sodium fluoride, which exceeded the lab standard of 10 milligrams per
milliliter. Also, the blood in the vial he received contained a coagulated clot. This was
an indication the blood was not adequately mixed with anticoagulant and sodium

                                             13
fluoride. However, he believed the clot had a minimal effect on the test result. While
admitting that California regulations did not explicitly require refrigeration, he believed a
blood sample should be immediately refrigerated upon collection “to minimize the
chance of microbial growth that would either increase or decrease the alcohol content.”
       While he was employed as a supervisor by the San Mateo County Forensic Lab,
Mark commissioned a study of the efficacy of sodium fluoride in varying amounts as an
antimicrobial agent. The study found refrigeration was better than 10 milligrams per
milliliter of sodium fluoride at protecting against fermentation when yeast was present in
the sample. In that study, room temperature specimens inoculated with yeast showed no
fermentation at two days. Uninoculated specimens that had sodium fluoride had no
alcohol after 35 days. He disagreed with Stumbaugh that the upper limit on the amount
of fermentation that could occur in a sample is 0.02 percent; he had seen reports of 0.20
percent. There was no way to say what amount of fermentation occurred in a sample
held unrefrigerated for 10 hours without retesting the sample that tested 0.23 percent.
Based on his study, however, he would not expect to see significant fermentation in a
sample that was not refrigerated for 10 hours and removed from refrigeration for one 30-
minute period prior to testing four days later.
       In Mark’s study, samples that tested negative for alcohol at the start but
demonstrated fermentation later looked and smelled perfectly normal.
       Mark expected that a person with a 0.20 percent BAC would show significant
symptoms of intoxication, even if that person were highly tolerant of alcohol. He
disagreed with Mr. Posey’s opinion that at 0.15 percent BAC, all persons are too
impaired to drive safely. Mark believed that level was reached at 0.10 percent. Mark
believed that for a 185-pound man to have a 0.20 percent BAC reading at 12:35 a.m., he
would have had to consume 17 drinks between 7:30 p.m. and 9:30 p.m. If that same man
consumed four drinks in the same time period, his BAC at 9:50 p.m. would be no higher



                                             14
than 0.03 percent. If a person consumed 17, 18, or 19 drinks in an afternoon before
arriving somewhere, Mark would not expect that person to be obviously intoxicated.
                                      DISCUSSION
I. Substantial Evidence Supports Defendant’s Murder Conviction
       Defendant argues the evidence adduced at trial is insufficient to support his
conviction for second degree murder. “[D]riving while intoxicated is an act which may
support a conviction for second degree murder under an implied malice theory. . . .
‘ “One who willfully consumes alcoholic beverages to the point of intoxication, knowing
that he thereafter must operate a motor vehicle, thereby combining sharply impaired
physical and mental faculties with a vehicle capable of great force and speed, reasonably
may be held to exhibit a conscious disregard of the safety of others.” ’ ” (People v.
Ferguson (2010) 194 Cal.App.4th 1070, 1081, quoting from People v. Watson (1981) 30
Cal.3d 290, 300-301 (Watson).)
       Post-Watson cases affirming drunk-driving murder convictions “have relied on
some or all of the following factors in upholding such convictions: (1) a blood-alcohol
level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of
the hazards of driving while intoxicated; and (4) highly dangerous driving.” (People v.
Autry (1995) 37 Cal.App.4th 351, 358.) Defendant acknowledges Watson does not
require that all of these factor be present to sustain a conviction of vehicular second
degree murder (People v. Olivas (1985) 172 Cal.App.3d 984, 988-989), and he concedes
the evidence demonstrates a predrinking intent to drive and knowledge of the hazards of
driving while intoxicated, but he disputes there is sufficient evidence to show a BAC
above 0.08 percent and highly dangerous driving. We disagree.
       We set forth the familiar rules which govern our analysis of defendant’s argument.
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a

                                             15
reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v.
Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in
the light most favorable to respondent and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.” (People v.
Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210,
1237.)
         An appellate court does not reweigh the evidence or resolve factual conflicts in the
evidence, “for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends.” (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on other grounds in
People v. Burton (1961) 55 Cal.2d 328, 352.) “ ‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant reversal of
the judgment. [Citations.]’ [Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
         “Malice is implied when the killing is proximately caused by ‘ “an act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143.) “[A]
finding of implied malice depends upon a determination that the defendant actually
appreciated the risk involved, i.e., a subjective standard.” (Watson, supra, 30 Cal.3d at
pp. 296-297.) In our view, the trial record contains ample evidence from which a rational
jury could conclude defendant acted with implied malice.
         Although defendant aggressively challenged the prosecution’s experts on the
reliability of defendant’s BAC by presenting its own experts, ultimately it was for the
jury to decide which experts were more convincing. “To warrant the rejection of the
statements given by a witness who has been believed by a [fact finder], there must exist
either a physical impossibility that they are true, or their falsity must be apparent without

                                              16
resorting to inferences or deductions.” (People v. Huston, supra, 21 Cal.2d at p. 693,
overruled on other grounds in People v. Burton, supra, 55 Cal.2d at p. 352.) Defendant
has not demonstrated the expert testimony presented by the prosecution on blood
collection and analysis, the effects of alcohol and cocaine on the human nervous system,
accident reconstruction, or unintended acceleration was apparently false or so unreliable
as to be physically impossible. If believed by the jury, as they obviously were, the
prosecution’s expert witnesses established that defendant’s BAC was over the legal limit
and that his driving was thereby impaired.
       Further, the lay witness testimony established that defendant’s reckless driving
consisted of more than speeding. Witnesses also testified to near-collisions with their
cars, collisions with the curb and a tree, veering across lanes, and running a red light.
Defendant’s girlfriend testified that after dinner she took the car keys from defendant and
gave them to the passenger. A paramedic and a police officer testified that defendant
smelled of alcohol and had bloodshot and watery eyes. Defendant admitted alcohol
consumption.
       Evidence was presented that defendant knew of the dangers of drinking and
driving and it did not deter him. The jury was instructed that testimony about defendant’s
three prior incidents of drinking and driving, if believed, could be considered for the
limited purpose of proving that defendant knew of the dangerousness of drinking and
negligent driving. Combined with testimony that he attended two programs designed to
educate him about the dangers of drinking and driving, including causing a vehicular
homicide, the evidence demonstrates defendant was subjectively aware of the risk to life
he posed by drinking and driving, and that he consciously disregarded it. Finally, if the
jury believed defendant refused to submit to a blood test, that evidence tended to show
“he was aware of his guilt.” (CALCRIM No. 2130.) Given the entirety of the picture
presented by the evidence, a rational jury was entitled to conclude defendant had drunk
more than two beers and a glass of wine with dinner that day, the 0.20 percent BAC

                                             17
accurately reflected his state of alcohol intoxication, his driving was thereby impaired,
and he knew and subjectively appreciated the dangers of drinking and driving but chose
to drink and drive, despite the risk to life. In short, the evidence supports the jury’s
murder verdict.
II. The Motion to Suppress Defendant’s Blood-Alcohol Result was Properly Denied
       Relying on Schmerber v. California (1966) 384 U.S. 757 (Schmerber) and
Missouri v. McNeely (2013) __U.S. __ [133 S. Ct. 1552] (McNeely), defendant argues on
appeal that his motion to suppress the evidence of his 0.20 percent BAC and his refusal to
take a blood test should have been granted because the prosecution did not show that
exigent circumstances excused the police from getting a warrant. As a result, both the
murder and manslaughter convictions must be reversed. We disagree. As we explain
below, the argument fails on several grounds. First, defendant did not rely on this
argument below and has forfeited it on appeal. Second, defense counsel was not derelict
for failing to argue lack of exigency because such an argument lacked merit.
       A. Standard of Review
       In reviewing the trial court’s denial of a motion to suppress evidence under Penal
Code section 1538.5, we defer to the trial court’s express and implied factual findings if
they are supported by substantial evidence (People v. Woods (1999) 21 Cal.4th 668, 673),
and indulge all inferences in favor of the court’s order. (People v. Brown (1990) 216
Cal.App.3d 1442, 1447.) We exercise independent judgment to determine whether,
based on the facts found by the trial court, the search was lawful. (People v. Woods,
supra, at pp. 673-674.)
       B. Schmerber and McNeely Decisions
       In Schmerber, supra, 384 U.S. 757, “[p]etitioner and a companion had been
drinking at a tavern and bowling alley. There was evidence showing that petitioner was
driving from the bowling alley about midnight November 12, 1964, when the car
skidded, crossed the road and struck a tree. Both petitioner and his companion were

                                              18
injured and taken to a hospital for treatment.” (Id. at p. 758, fn. 2.) “The police officer
who arrived at the scene shortly after the accident smelled liquor on petitioner’s breath,
and testified that petitioner’s eyes were ‘bloodshot, watery, sort of a glassy appearance.’
The officer saw petitioner again at the hospital, within two hours of the accident. There
he noticed similar symptoms of drunkenness. He thereupon informed petitioner ‘that he
was under arrest . . .’ ” (id. at pp. 768-769), while petitioner was receiving treatment for
his injuries. “At the direction of a police officer, a blood sample was then withdrawn
from petitioner’s body by a physician at the hospital” (id. at p. 758) “according to
accepted medical practices.” (Id. at p. 771.)
       On these facts, the Supreme Court rested two distinct holdings. First: “The officer
in the present case . . . might reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant, under the circumstances,
threatened ‘the destruction of evidence,’ [citation]. We are told that the percentage of
alcohol in the blood begins to diminish shortly after drinking stops, as the body functions
to eliminate it from the system. Particularly in a case such as this, where time had to be
taken to bring the accused to a hospital and to investigate the scene of the accident, there
was no time to seek out a magistrate and secure a warrant. Given these special facts, we
conclude that the attempt to secure evidence of blood-alcohol content in this case was an
appropriate incident to petitioner’s arrest.” (Schmerber, supra, 384 U.S. at pp. 770-771,
italics added.)
       Second: “[W]e are satisfied that the test chosen to measure petitioner’s blood-
alcohol level was a reasonable one. Extraction of blood samples for testing is a highly
effective means of determining the degree to which a person is under the influence of
alcohol. [Citation.] Such tests are a commonplace in these days of periodic physical
examination and experience with them teaches that the quantity of blood extracted is
minimal, and that for most people the procedure involves virtually no risk, trauma, or
pain. . . . [¶] Finally, the record shows that the test was performed in a reasonable

                                             19
manner. . . . We are thus not presented with the serious questions which would arise if a
search involving use of a medical technique, even of the most rudimentary sort, were
made by other than medical personnel or in other than a medical environment—for
example, if it were administered by police in the privacy of the stationhouse. To tolerate
searches under these conditions might be to invite an unjustified element of personal risk
of infection and pain.” (Id. at pp. 771-772, fn. omitted.)
       McNeely, supra, __U.S. __ [133 S. Ct. 1552], involved a “routine DWI case.” (Id.
at p. 1557.) A police officer stopped the defendant’s truck at 2:08 a.m. on the highway
after observing it speeding and repeatedly crossing the centerline. (Id. at p. 1556.) The
officer noticed defendant had bloodshot eyes, slurred speech, the smell of alcohol on his
breath, and difficulty getting out of his truck. Defendant admitted having “a couple of
beers” at a bar. Defendant was arrested after failing a number of field sobriety tests and
refusing to take a breath test to measure his BAC. (Id. at p. 1557.) The officer was on
his way to the stationhouse with defendant but changed course and took defendant to a
nearby hospital for blood testing after defendant again refused to take a breath test. The
officer did not attempt to get a warrant. (Ibid.) Once at the hospital, the officer asked
defendant if he would consent to a blood test and read him the standard implied consent
form which explained his refusal to submit to testing could be used against him in a
future prosecution and would in any event immediately lead to a one-year revocation of
his driver’s license. After defendant refused, the officer directed a lab technician to take
a blood sample, which was done at 2:35 a.m. (Ibid.) The trial court granted defendant’s
motion to suppress the results of the blood test for lack of a warrant or exigent
circumstances to excuse getting one, and the state Supreme Court affirmed. (Ibid.) The
question before the United States Supreme Court was “whether the natural dissipation of
alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify
an exception to the warrant requirement for nonconsensual blood testing in drunk-driving
investigations.” (Id. at p. 1558.) The Supreme Court affirmed, declining to create a

                                             20
categorical exception to the warrant requirement for blood testing in drunk-driving cases
on account of the “inherently evanescent” quality of BAC evidence. (Id. at pp. 1558,
1560.)
         Instead, the court reaffirmed its commitment to a “totality of the circumstances”
approach to determine “whether a law enforcement officer faced an emergency that
justified acting without a warrant.” (McNeely, supra, __U.S. at p. __ [133 S. Ct. at p.
1559].) While acknowledging that “improvements in communications technology do not
guarantee that a magistrate judge will be available when an officer needs a warrant after
making a late-night arrest,” it made clear that “technological developments that enable
police officers to secure warrants more quickly, and do so without undermining the
neutral magistrate judge’s essential role as a check on police discretion, are relevant to an
assessment of exigency. That is particularly so in this context, where BAC evidence is
lost gradually and relatively predictably.” (Id. at pp. 1652-1653.)
         The technological advances referenced in McNeely were not part of the
evidentiary landscape in 1966 when Schmerber was decided. Nevertheless, the Court
went out of its way to reaffirm that the facts in Schmerber demonstrated the existence of
exigent circumstances. “In short, while the natural dissipation of alcohol in the blood
may support a finding of exigency in a specific case, as it did in Schmerber, it does not
do so categorically. Whether a warrantless blood test of a drunk-driving suspect is
reasonable must be determined case by case based on the totality of the circumstances.”
(McNeely, supra, __U.S. at p. __ [133 S. Ct. at p. 1563], italics added.)
         C. Defendant’s Contentions Below and on Appeal
         In the trial court, defendant argued the officer’s conduct violated the Fourth
Amendment in that drawing defendant’s blood over his refusal to consent to the
procedure unreasonably interfered with his access to “ongoing emergency medical




                                              21
treatment” for “15 minutes” while he was “obviously [in] severe pain, and being treated
for severe injuries.”2 Defendant does not renew that argument here.
       Instead, defendant argues on appeal the officer was required to secure a warrant
before getting a blood sample from defendant because exigent circumstances were not
shown to exist, an argument he did not make below. “Objections not presented to the
trial court cannot be raised for the first time on appeal.” (In re Michael L. (1985) 39
Cal.3d 81, 88.) Ordinarily, parties are not permitted “to assert a new theory on appeal to
support or defeat the trial court’s suppression ruling” (Green v. Superior Court (1985) 40
Cal.3d 126, 137) if the lack of notice of the new theory robs the other side of the
“opportunity to present evidence in opposition.” (Id. at p. 138.) That is the situation
here. By failing to challenge the blood draw below on the ground the police could have
obtained a warrant and therefore lacked exigent circumstances, defendant has waived
direct appellate review of the exigent circumstances issue.
       Anticipating our ruling, defendant opts to circumvent it by arguing trial counsel
was ineffective for failing to raise the issue below or “develop[] the necessary facts
through investigation and the presentation of evidence that Duren or her colleagues had
plenty of time to obtain a search warrant but failed to do so.” We disagree.
       “In order to prevail [on an ineffective assistance of counsel claim], the defendant
must show both that counsel's representation fell below an objective standard of
reasonableness, [citation] and that there exists a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
[Citation.] Where defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the defendant must also prove
that his Fourth Amendment claim is meritorious and that there is a reasonable probability



2
 Defendant filed two written motions to suppress, one before each trial. As defendant
acknowledges, both motions were “essentially the same.”


                                             22
that the verdict would have been different absent the excludable evidence in order to
demonstrate actual prejudice.” (Kimmelman v. Morrison (1986) 477 U.S. 365, 375.)
       Defendant’s argument fails because he cannot show a motion to suppress based on
the lack of exigent circumstances would have been meritorious. The facts of this case are
eerily similar to the facts in Schmerber and a far cry from the routine DUI arrest in
McNeely – which had not been decided at the time of defendant’s renewed motion to
suppress in August 2011. Like Schmerber and unlike McNeely, defendant’s car hit a tree,
causing an accident in which he and his passenger were injured, except here the
passenger’s injuries were fatal. Police and paramedics were dispatched to the scene of
the accident at 9:53 p.m.3 The passenger had to be extracted from the upside-down car
with the Jaws of Life. Defendant admitted to a paramedic (who told Officer Duren) that
he had been drinking alcohol that evening. Defendant was taken to the hospital by
ambulance for treatment while police remained on the scene to direct traffic and conduct
a DUI and homicide investigation. Officer Duren knew there would be no breath testing
equipment available at the hospital and that defendant was in no condition to be breath-
tested; she called a county phlebotomist to meet her at the hospital. Officer Duren
arrived at the hospital at 11:42 p.m. and spoke with the paramedics at 11:58 p.m. By the
time she obtained permission to speak with defendant in the emergency room, two hours
and 10 minutes had elapsed since the accident report. Officer Duren then Mirandized
defendant and questioned him about the accident; she also tried to find out if defendant
would consent to a blood test. At first, defendant acquiesced, but as she questioned him
further to ascertain whether he understood what she was saying, and defendant became
more alert, his acquiescence hardened into refusal. The blood draw began at 12:35 a.m.,
more than two and a half hours after the accident report.



3
  The facts are drawn from Officer Duren’s testimony at the motion to suppress prior to
the first trial. She did not testify again at the renewed motion prior to the second trial.


                                             23
       In our view, under the totality of these circumstances, “[t]he officer in the present
case . . . might reasonably have believed that [she] was confronted with an emergency, in
which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the
destruction of evidence.’ ” (Schmerber, supra, 384 U.S. at p. 770.) Defendant’s injuries
– not his refusal of a breath test, as in McNeely – necessitated taking him to the hospital
for treatment. The officer had no control over how long the investigation at the scene of
the homicide would take, or what shape defendant would be in when she got to the
hospital to continue her investigation. She had no reason to believe at the time she called
the phlebotomist that defendant would later refuse to consent to a blood test. In fact, he
did appear to consent, at first. It was not until defendant refused the blood test, more than
two and a half hours after the accident, that the issue of a warrant would have arisen. At
that point, the evidence was already disappearing at an alarming rate, and no
technological advancement could “guarantee that a magistrate judge will be available
when an officer needs a warrant after making a late-night arrest.” (McNeely, supra,
__U.S. at p. __ [133 S. Ct. at p. 1562].) Given the law and these facts, defendant’s
argument -- that exigent circumstances did not exist -- lacks merit. Therefore, his
ineffective assistance of counsel claim, too, must fail.
III. The Jury Correctly Did Not Learn of Defendant’s Manslaughter Conviction4
       Defendant argues the trial court should have informed the jury (1) he was
originally charged with murder and gross vehicular manslaughter; (2) he was convicted
of gross vehicular manslaughter; (3) the first jury could not reach a verdict on the murder
charge; (4) at the second trial, the jury could not consider the earlier verdict for any


4
 After briefing was completed, defendant requested augmentation of the appellate record
with two volumes of reporter’s transcripts of voir dire. These show the prospective jurors
were informed defendant was in custody for something related to the pending trial; they
were not going to learn anything more about the reasons for his custodial status; and they
were not to consider defendant’s custodial status for any purpose in the upcoming trial.
We grant defendant’s request for augmentation; however, the voir dire does not change
our analysis of defendant’s claim or our conclusion no error occurred.


                                              24
purpose; and (5) if they could reach a verdict in this trial, it would not affect the
manslaughter verdict. 5 The trial court declined to so inform the jury, deciding it was
“cleaner” to simply refer to the first trial as a “prior proceeding.”
       Defendant contends the trial court’s failure to instruct the jury on the outcome of
the first trial deprived him of due process in that it gave the prosecutor an “unfair
advantage” by allowing him to present the jury with the “all or nothing” choice of
convicting him of murder or acquitting him. In essence, defendant’s position is that he
would have had a better chance of winning an acquittal of murder if the jury knew he
would be punished anyway for gross vehicular manslaughter.
       Defendant also claims the prosecutor committed misconduct and violated the
equitable doctrine of judicial estoppel by taking incompatible positions to gain an unfair
advantage at the second trial. (People v. Castillo (2010) 49 Cal.4th 145, 155.) And, he
asserts the prosecutor committed misconduct by telling the jury in his rebuttal portion of
his closing argument that defendant was hoping the jury would “let him walk away from
a murder charge.” We disagree.
       We first address whether the trial court abused its discretion in excluding evidence
of the outcome of the first trial. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) In
California, “[n]o evidence is admissible except relevant evidence.” (Evid. Code, § 350;
see also § 351; Cal. Const., art. 1, § 28, subd. (f)(2) [all relevant evidence admissible with
certain exceptions]) “ ‘Relevant evidence’ means evidence . . . having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination
of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends

5
  Defendant proposed the following instruction: “Mr. Walker was originally charged in
this case with gross vehicular manslaughter and second degree murder arising from the
incident leading to the death of Dan White. In an earlier trial, Mr. Walker was convicted
of gross vehicular manslaughter, but the jury could not reach a verdict on the second
degree murder charge. . . . You are hereby instructed that you may not consider that
earlier verdict for any purpose in determining the issues in this trial. You are also
instructed that your verdict in this case, if one can be reached, will not affect that earlier
verdict in any way.”


                                              25
‘logically, naturally, and by reasonable inference’ to establish material facts such as
identity, intent, or motive. [Citations.] The trial court retains broad discretion in
determining the relevance of evidence.” (People v. Garceau (1993) 6 Cal.4th 140, 177,
disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) The
fact that at the first trial defendant was convicted of manslaughter, and that the jury was
unable to reach a verdict on the murder charge, was not relevant to any disputed issue in
the subsequent murder trial. By not informing the jury of the conviction and mistrial, the
court guarded against distracting the jury from its task with musings about penalty, and
the consequent possibility of jury nullification. The trial court did not abuse its discretion
in excluding those facts from the jury’s consideration.
       Assuming defendant’s due process argument was subsumed under and preserved
by his other objections (People v. Partida (2005) 37 Cal.4th 428, 435), it nevertheless
lacks merit. Application of the ordinary rules of evidence does not impermissibly
infringe on a defendant’s due process rights. (People v. Boyette (2002) 29 Cal.4th 381,
427-428.)
       Defendant’s judicial estoppel and prosecutorial misconduct claims also fail. He
did not argue violation of the equitable doctrine of judicial estoppel below, nor did he
object to the prosecutor’s comment during closing argument. Arguably, he has forfeited
those claims of error on appeal. (Evid. Code, § 354, subd. (a); People v. Raley (1992) 2
Cal.4th 870, 892; People v. Hill (1998) 17 Cal.4th 800, 820-821.) In any event, neither
claim has merit.
       The prosecutor did not adopt “wholly inconsistent” positions at the first and
second trials. (People v. Castillo, supra, 49 Cal.4th at p. 155.) “Section 954 sets forth
the general rule that defendants may be charged with and convicted of multiple offenses
based on a single act or an indivisible course of conduct. It provides in relevant part: ‘An
accusatory pleading may charge two or more different offenses connected together in
their commission, or different statements of the same offense . . . . The prosecution is not

                                              26
required to elect between the different offenses or counts set forth in the accusatory
pleading, but the defendant may be convicted of any number of the offenses
charged . . . .’ ” (People v. Pearson (1986) 42 Cal.3d 351, 354, italics added.)
Nevertheless, “multiple convictions may not be based on necessarily included offenses.”
(Id. at p. 355.)
       Gross vehicular manslaughter, however, is not a lesser included offense of murder.
(People v. Sanchez (2001) 24 Cal.4th 983, 987-991; disapproved on a different point in
People v Reed (2006) 38 Cal.4th 1224, 1227-1228.) As the Sanchez court explained:
“Although as a factual matter, a murder may be carried out by means of a vehicle and by
an intoxicated driver, in the abstract it obviously is possible to commit a murder without
committing gross vehicular manslaughter while intoxicated. Accordingly, dual conviction
in the present case was appropriate    although the trial court properly avoided dual
punishment pursuant to section 654 by staying execution of sentence for the vehicular
manslaughter offense.” (Id. at p. 988.)
       Accordingly, the prosecutor committed no wrongdoing in charging defendant with
both murder and gross vehicular manslaughter. Nor did he adopt inconsistent positions,
or gain any unfair advantage, by deciding to retry defendant for murder after the first jury
was unable to reach a verdict. Defendant relies by analogy on cases involving the court’s
duty to instruct on lesser included offenses shown by the evidence (People v. Barton
(1995) 12 Cal.4th 186, 196 [“ ‘[o]ur courts are not gambling halls’ ”]; Beck v. Alabama
(1980) 447 U.S. 625), or implicating double jeopardy concerns after a first jury’s
conviction on a lesser included offense is improperly recorded and leads to a second trial
on the greater offense. (People v. Fields (1996) 13 Cal.4th 289.) At most, these cases
demonstrate that juries should be properly instructed as to lesser included offenses, and
verdicts on lesser included offenses should not be recorded where no verdict has been
reached on the greater offense. But these cases do not demonstrate that the prosecution
abuses its charging discretion by including murder and gross vehicular manslaughter in

                                             27
the same accusatory pleading, or by opting to retry a mistried count. Nor do those cases
suggest a prosecutor violates equitable principles by opposing the defense’s request to
inform the second jury of the first jury’s mixed verdict.
       Similarly, the prosecutor’s unobjected-to comment during closing argument did
not misstate the law or the facts. Even if we assumed error, given the evidence adduced
at trial and the court’s instructions, there is no reasonable probability the jury would have
returned a result more favorable to defendant in the absence of the comment. (People v.
Watson (1956) 46 Cal.2d 818, 836.)
IV. The Jury Was Correctly Instructed on Implied Malice
       Defendant contends the implied malice instruction given here, CALCRIM no. 520,
is internally inconsistent in that it tells the jury, on the one hand, that the defendant acts
with implied malice when he deliberately acts with conscious disregard for human life,
and on the other hand, that malice does not require deliberation.6 He argues the latter
sentence cancels out the former and violated due process by effectively removing one of
the four constituent elements of implied malice from the jury’s purview, thereby relieving
the prosecution of its burden of proving defendant acted with implied malice. (Estelle v.
McGuire (1991) 502 U.S. 62, 72; but see People v. Cummings (1993) 4 Cal.4th 1233,
1314 [harmless error analysis applies to misinstruction on one element or one aspect of

6
  As given here, CALCRIM no. 520 provided in relevant part:
    “The defendant is charged . . . [with] murder in violation of Penal Code section 187.
[¶] To prove that the defendant is guilty of this crime, the People must prove that: One,
the defendant committed an act that caused the death of another person; and, two, 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 aforethought if he unlawfully intended to kill. The defendant acted with
implied malice if, one, he intentionally committed an act; two, the natural and probable
consequences of the act were dangerous to human life; three, at the time that he acted, he
knew his act was dangerous to human life; and, four, 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.” (Italics added.)


                                               28
an element]; People v. Mil (2012) 53 Cal.4th 400, 413-414 [reaffirming principle].) We
disagree.
       We review defendant’s challenge to the implied malice instruction in light of well-
settled principles. “We conduct independent review of issues pertaining to instructions.”
(People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411, citing People v. Waidla (2000) 22
Cal.4th 690, 733, 737.) When the defendant challenges the adequacy of the instruction as
ambiguous or potentially misleading, our principle task is to determine “whether there is
a reasonable likelihood that the jury has applied the challenged instruction in a way that
violates the Constitution” or California law. (People v. Ayala (2000) 24 Cal.4th 243,
289, internal quotation marks omitted; Estelle v. McGuire, supra, 502 U.S. at p. 72;
People v. Clair (1992) 2 Cal.4th 629, 662-663.) We determine the correctness of the
challenged instruction “in the context of the instructions as a whole and the trial record,”
and not “ ‘in artificial isolation.’ ” (Estelle v. McGuire, supra, 502 U.S. at p. 72.) Thus,
for example, “ ‘ “[t]he absence of an essential element in one instruction may be supplied
by another or cured in light of the instructions as a whole.” ’ ” (People v. Musselwhite
(1998) 17 Cal.4th 1216, 1248.)
       At trial, defendant requested an instruction that would have defined “deliberately
acted” in terms drawn from the first degree murder instruction on premeditation and
deliberation.7 The court correctly rejected defendant’s proposed instruction. “Deliberate
intent . . . is not an essential element of murder, as such. It is an essential element of one
class only of first degree murder and is not at all an element of second degree murder.”
(People v. Valentine (1946) 28 Cal.2d 121, 131-132.) “Malice aforethought as required in
second degree murder is not synonymous with the term deliberate as used in defining first

7
  The requested instruction stated: “Defendant acted deliberately if he carefully weighed
the considerations for and against his choice and, knowing the consequences, decided to
perform the act that was dangerous to 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 the passage of any particular
period of time.” (See CALCRIM No. 521.)


                                              29
degree murder. [Citation.] To hold otherwise would obliterate the distinction between the
two degrees of murder.” (People v. Washington (1976) 58 Cal.App.3d 620, 624.)
       Defendant also requested the court leave out the phrase “does not require
deliberation,” so that the last sentence of the instruction would read: “It [malice
aforethought] does not require the passage of any particular period of time.” The court
correctly rejected this request as well.
       Instructional definitions of malice aforethought using the language to which
defendant objects have long been approved by the California Supreme Court. For
example, in People v. Dellinger (1989) 49 Cal.3d 1212, 1222, our Supreme Court
approved the 1983 Revision (4th ed. 1983 supp.) and the 1988 Revision (5th ed. 1988) of
CALJIC no. 8.11, both of which, like the 2013 version, conclude: “The word
‘aforethought’ does not imply deliberation or the lapse of considerable time. It only
means that the required mental state must precede rather than follow the act.” (Id. at pp.
1221-1222 & fn. 1, italics added.) In People v. Knoller, supra, 41 Cal.4th 139, the Court
re-approved CALJIC no. 8.11 and approved CALCRIM no. 520, the instruction at issue
here. (Id. at p. 152.) Although the Dellinger and Knoller opinions did not focus on the
phrase to which defendant objects, we think it highly unlikely the Court would have
approved instructions that contained glaring inconsistencies.
       Moreover, we find no basis in the record to conclude the jurors were confused, and
see no reasonable likelihood any jurors applied the challenged instruction in a way that
allowed them to conclude defendant had implied malice without a conscious disregard of
for human life. To paraphrase a different court, “ ‘How can an individual [consciously]
disregard a fact without having [deliberately] regarded it in the first instance?’ ”
(Dellinger, supra, 49 Cal.3d at p. 1220, quoting from People v. Benson (1989) 210
Cal.App.3d 1223, 1230, fn. 4.)
       In addition to correctly instructing on the components of implied malice, the court
also instructed the jury that if some words or phrases used during the trial had a legal

                                             30
meaning different from the meanings in everyday use, they would be specifically
instructed on those meanings; otherwise, “[w]ords and phrases . . . are to be applied using
their ordinary everyday meaning.” Likewise, the jury was instructed (twice) not to “use a
dictionary, the Internet, or reference materials,” and to follow the law as explained by the
court, even if the jury disagreed with it, and even “[i]f you believe that the attorneys’
comments on the law conflict with my instructions . . . .” The jurors were also instructed
at the start of trial: “Nothing that the attorneys say is evidence. In their opening
statements and closing arguments, the attorneys will discuss the case, but their remarks
are not evidence.” In our view, these instructions taken as a whole were sufficient to put
the attorneys’ dueling dictionary definitions of “deliberately” during closing arguments in
their proper perspective for the jury. We conclude that viewed “in the context of the
instructions as a whole and the trial record,” and not “ ‘in artificial isolation,’ ” there was
no instructional ambiguity. (Estelle v. McGuire, supra, 502 U.S. at p. 72.)
V. The Motion for New Trial Was Properly Denied
       Defendant argues the trial court erroneously denied his motion for new trial based
on jury misconduct during deliberations. He contends the evidence presented at the
hearing on his motion established that one juror voted for a guilty verdict because she
was concerned defendant would reoffend if acquitted and, if he did, she couldn’t live with
herself. The trial court found no misconduct or prejudice had been established and
denied the motion. We find no error, and reject defendant’s argument as well.
       A. Factual Background
       After eight days of testimony, jury deliberations began on September 28, 2011 at
4:25 p.m. and ended for the day five minutes later. On Thursday, September 29, 2011,
after 3:25 p.m., the court received two missives from the jury enquiring about
cocaethylene and driving under the influence. The court responded to both inquiries, and
the jury continued to deliberate on Friday, September 30. On Monday, October 3, juror
no. 7 (JN7), the foreperson, informed the bailiff before lunch that juror no. 2 (JN2) told

                                              31
the jury she had done some research over the weekend about the definition of
cocaethylene. The foreperson told JN2 not to share what she learned with the jury.
       That afternoon, the court questioned JN2. She admitted “Googl[ing]”
cocaethylene but said she didn’t find anything. She wanted to know the “legal limit” for
cocaine, “like alcohol, it’s .08,” but she could not find that information online. Asked if
she remembered the admonition about not doing outside research, she replied, “I was not
sure because each one of us had specific specialization and they brought knowledge
which nobody else had.” Asked if she told the other jurors what she found, she replied,
“No, there was nothing. I found nothing.”
       The court then questioned the foreperson, JN7. He told the court that JN2 told the
jurors she found some definitions on cocaethylene, but “[w]e all stopped her before she
got [as] far” as telling them the definition. He added: “We wanted to make sure it was
clear that everyone knew that there was no research to be done on any aspect of the case
whatsoever.” The court then brought JN2 back in and admonished her that she had
violated the court’s order to avoid going on the internet and avoid doing research. “I was
very clear about not Googling. I even said, ‘Don’t Google it’ . . . . By the fact that you
violated the Court’s order, I have to excuse you from the jury service.” The court then
substituted alternate juror no. 1 for JN2 and instructed the jury to begin deliberations
anew. The jury returned its verdict the following day at 11:57 a.m.
       On October 26, 2011, excused juror JN2 contacted the superior court judge by
email in response to his letter inviting jurors to share their thoughts on the experience of
being a juror in defendant’s case. Her email stated: “I feel compelled to bring to your
notice the fact that the majority of the jurors convicted the defendant thinking the only
choices were ‘guilty of second degree murder’ and ‘not guilty of anything’. [¶] Most of
us were uncomfortable with declaring him guilty of second degree murder, but thought
we did not have a choice since he was clearly guilty to a lesser degree. We thought if we
said ‘not guilty’ he might go home and repeat his behavior. You had pointed out that that

                                             32
was not going to happen, but it only made us think that he might be in jail for some other
unrelated crime. [¶] To summarize my feedback, if the jurors had known that Mr.
Walker had already been convicted of vehicular manslaughter, there is absolutely no way
that he would have been convicted of second degree murder by this jury.”
       Contacted by a defense investigator by phone, removed JN2 added that, “during
deliberations, jurors had specifically stated that they were concerned that they did not
know how long Mr. Walker would remain in custody, and that if they failed to convict
him, he could be released and be a danger to the community. She stated that such
statements were ‘definitely said’ by members of the jury during deliberations. She also
stated that more than one juror had made such statements.” Former JN2 never signed a
declaration repeating under oath the information outlined above.
       Apparently juror no. 11 (JN11) also emailed the judge. This email is not part of
the record on appeal, but it was disclosed to the attorneys. Later comments by the judge
indicate JN11 took “umbrage of the fact that he views that I have no discretion in my
sentencing. . . . And his frustrations demonstrate themselves in his initial E-mail, which
I’ve provided to counsel, and I think began this process by which counsel brought forth
this motion to receive the information of the jurors and their addresses and information,
which was granted, and subsequently this current motion.” The defense investigator
contacted or interviewed, in addition to removed JN2, juror nos. 4, 8, 10, and 11.
Alternate juror no. 1, who replaced the removed juror, stated she did not wish to
cooperate with the defense.
       JN11 submitted two declarations to the court. In the first declaration he stated
“there were discussions among the jurors about the consequences of the two possible
verdicts, second degree murder and not guilty. [¶] Some jurors stated that they were
concerned that if we did not vote to convict defendant of murder, that he would be
released and would not receive any punishment for this event and that he would be a
danger to the public. [¶] One juror voiced her concern about the danger of defendant

                                             33
being found not guilty in the following terms. She stated that she lived in or near
Burlingame, and she knew the area in which Mr. Walker’s accident had occurred, and her
children spent time in the bars in the Burlingame area. She stated that if she voted not
guilty, and defendant were released, and somebody got hurt because defendant drank and
drove, then ‘I would not be able to live with myself.’ This is how she ‘made the case’ for
voting for guilty for murder. [¶] There were other jurors who voiced agreement when
the above statements were made. Nobody on the jury voiced any objection to these
statements or argued that they were improper or should not be considered. [¶] These
statements were made during deliberations before the jury had reached agreement to vote
guilty for murder. Prior to the final ballot in which the jury agreed to convict of murder,
several jurors had stated that they had reservations about convicting of murder and were
not ready to commit to voting for guilty of murder.”
       The prosecution submitted declarations from six jurors. Four of the six had no
recollection of any juror making any statement “that if the defendant were not convicted
of murder that he would not receive any punishment” and would continue to endanger the
public, or that the juror would not be able to live with herself if defendant were released
and hurt someone else. Two of the jurors, JN2 (the alternate who replaced the removed
juror) and JN7, the foreperson, vaguely recalled a juror mentioning the consequences of
the two possible verdicts – second degree murder and not guilty. JN2 stated that
comment was brief, and was made by a female juror at the very end of deliberations. JN7
added that the comment was not discussed by the entire jury, which “was quickly
redirected back to discussion of the evidence.”
       Both JN2 and JN7 also had a “vague recollection” of a juror saying that “if she
voted not guilty and the Defendant were released and hurt someone else, she ‘wouldn’t
be able to live with [her]self. ’ ” JN7 thought this comment may have been connected to a
“hypothetical situation,” raised by that juror very early on in deliberations. Neither JN2
nor JN7 had any recollection of that juror saying she was voting for a guilty verdict on

                                             34
such a basis. Both described the comment as “off-hand.” JN2’s impression was that the
comment was “about [the juror’s] emotions surrounding the case” and it had no bearing
on JN2’s decision to vote for a guilty verdict. JN7 stated “no one else commented on that
statement or agreed with it” and that the comment was “redirected by the other jurors.”
Neither JN2 nor JN7 had any recollection of any juror saying anything to the effect that
he or she was voting “guilty” for sentencing reasons or out of concern that defendant, if
released, would pose a danger to the public. JN7 specifically recalled the jury being
instructed “not to consider sentencing or possible penalties in our deliberation.”
       In response to the prosecution’s declarations, the defense submitted a second
declaration from JN11, which said: “The statement I have described in my earlier
declaration, in which one of the jurors stated that she was concerned that if defendant was
found not guilty, he could be released, drink, drive, cause an accident and hurt someone,
and in which she stated that she could not live with herself if that happened, was made by
a female juror in the early or middle part of the deliberations. That juror was seated near
to me at the jury table. . . . The foreman was seated at the other end of the table, at the
end opposite from me. During our deliberations, there were sometimes more than one
person talking. In addition, individual jurors, including the foreman, sometimes were up
from their seats working on the blackboard while other jurors were speaking. When the
juror made the statement described above, the jurors responded affirmatively to her
statement and indicated their agreement with it. Jurors at the other end of the table may
not have heard the statement or the affirmative reaction expressed by the jurors who did
hear the statement.”8
        After hearing argument on the motion, the trial court observed the jury knew from
voir dire that defendant “was in custody and [was] going to be in custody for quite some
time regardless of the verdict,” but was instructed not to consider penalty or punishment.

8
  JN11’s declarations (Exhibits A and B) were not originally included in the record on
appeal. This court requested them from the superior court on its own motion.


                                              35
Adverting to JN11’s “frustrations” with the court’s perceived lack of sentencing options
at which he took “umbrage” in an email, the court recalled that JN11’s email prompted
the new trial motion based on jury misconduct. The court continued: “I don’t see
misconduct here. I think that the vagaries made by (Juror No. 11) as to his comments
don’t rise to the level of misconduct. There’s no basis for a hearing. There’s no material
conflicts that need to be addressed. I mean, if someone disagrees with my assessment
that what is being said is a misconduct, then it certainly is not prejudicial. It just doesn’t
rise to that level. The vagaries of this are such that just does not take it to that level.” The
motion was denied.
       B. General Principles and Standard of Review
       “The right to unbiased and unprejudiced jurors is an inseparable and inalienable
part of the right to a trial by jury guaranteed by the constitution.” (Lombardi v.
California St. Ry. Co. (1899) 124 Cal. 311, 317; accord, People v. Nesler (1997) 16
Cal.4th 561, 578; Cal. Const., art. 1, § 16; U.S. Const., 6th and 14th Amends.) A
violation of that right through prejudicial jury misconduct is grounds for a new trial.
(People v. Blackwell (1987) 191 Cal.App.3d 925, 929; Pen. Code, § 1181, subd. 3.)
       “It is settled that in the trial of a criminal case the trier of fact is not to be
concerned with the question of penalty, punishment or disposition in arriving at a verdict
as to guilt or innocence.” (People v. Allen (1973) 29 Cal.App.3d 932, 936, fn. omitted.) It
is also misconduct to disregard the trial court’s instructions, such as those given in this
case, enjoining the jury from considering penalty or punishment. (People v. Hill (1992) 3
Cal.App.4th 16, 34, overruled on another point in People v. Nesler, supra, 16 Cal.4th at
p. 582, fn. 5.)9
       Jury misconduct may be established by jurors’ declarations in a proper case. (See
Evid. Code, § 1150; Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506-507.)

9
  The jury was instructed: “You must reach your verdict without any consideration of
punishment.”


                                                36
Declarations recounting statements, conduct, or events “open to sight, hearing, and the
other senses and thus subject to corroboration” are admissible to establish juror
misconduct. (People v. Hutchinson (1969) 71 Cal.2d 342, 350.) Declarations submitted as
proof of an individual juror’s subjective reasoning processes, which can be neither
corroborated nor disproved, are not. (Krouse v. Graham (1977) 19 Cal.3d 59, 81.)
          To prevail on a claim of jury misconduct, the complaining party must show both
misconduct and resulting prejudice. “Prejudice exists if it is reasonably probable that a
result more favorable to the complaining party would have been achieved in the absence
of the misconduct.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 415.) Admissible
proof of jury misconduct generally raises a presumption of prejudice that may be rebutted
by proof that no prejudice actually resulted. (In re Hitchings (1993) 6 Cal.4th 97, 118-
119; People v. Mendoza (2000) 24 Cal.4th 130, 195; see also Hasson v. Ford Motor Co.,
supra, 32 Cal.3d at p. 416 & fn. 9.)
          In ruling on a motion for a new trial based on juror misconduct, the court first
determines if misconduct occurred and second, if it finds misconduct, whether the
misconduct affected the verdict. On the first question, “[w]e accept the trial court’s
credibility determinations and findings on questions of historical fact if supported by
substantial evidence. [Citations.]” (People v. Nesler, supra, 16 Cal.4th at p. 582.) The
second question, “[w]hether prejudice arose from juror misconduct . . . is a mixed
question of law and fact subject to an appellate court’s independent determination.”
(Ibid.)
          C. Analysis
          In this case, the trial court made a preliminary determination that no misconduct
occurred. The court arrived at this conclusion after consideration of the declarations of
JN11 on the one hand, and JN2 and JN7 on the other. If believed, the declarations of JN2
and JN7 established that any comments made were brief, and were not discussed or
endorsed by any member of the jury. Furthermore, the unidentified juror’s statement to

                                               37
the effect that she would not be able to live with herself if defendant were acquitted,
released, and hurt someone else did not establish that she voted “guilty” for that reason,
rather than the strength of the evidence. Not even JN11’s declarations alleged she told
the other jurors she was voting guilty for that reason. Significantly, both JN11 and JN7
recalled the comment was made early on in deliberations, presumably before the jury had
delved very deeply into its review of the evidence and the law, and before the individual
jurors had formed any hard and fast opinions.
       While it is true that considerations of punishment have no place in jury
deliberations about guilt, it is also true that “[j]urors, in common with people in general,
are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge
that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty
means that he is subject to such punishment as the court may impose.” (Lyles v. United
States (D.C. Cir. 1957) 254 F.2d 725, 728, overruled in part by U.S. v. Brawner (D.C.
Cir. 1972) 471 F.2d 969, 996.) As two examples from a related context illustrate, a jury’s
fleeting discussion of punishment does not necessarily establish that prejudicial
misconduct affecting the verdict has occurred. In People v. Riel (2000) 22 Cal.4th 1153,
one juror told another during the penalty phase of a capital case, “If we give him the
death penalty, the judge will just commute it to life in prison anyway.” (Id. at p. 1218.)
Our Supreme Court observed that the juror’s prediction was “merely the kind of
comment that is probably unavoidable when 12 persons of widely varied backgrounds,
experiences, and life views join in the give-and-take of deliberations. Not all comments
by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But
such comments cannot impeach a unanimous verdict; a jury verdict is not so fragile.” (Id.
at p. 1219.) Similarly, in People v. Schmeck (2005) 37 Cal.4th 240, our Supreme Court
rejected a jury misconduct claim where “the jurors briefly discussed the possibility that
defendant would be released despite any verdict of life imprisonment without the



                                               38
possibility of parole.” (Id. at p. 307, abrogated on another point in People v. McKinnon
(2011) 52 Cal.4th 610, 637-638.)
       Here, the question whether an unidentified juror’s comment was a fleeting, off-
hand comment about her emotions not shared by the jury as a whole and not discussed by
them, as described by JN7 and JN2, or something more sinister, as described by JN11,
was one of relative credibility. The court had reason to find the foreperson’s declaration
trustworthy, based on the court’s firsthand observation of the foreperson’s forthright
dealings with the jury and the court over the matter of the juror who Googled
cocaethylene. JN11, on the other hand, seemed to have some axe to grind about
punishment, as expressed in his email to the court.
       This court cannot disregard the trial court’s determination that the declarations by
JN2 and JN7 were more credible than those by JN11. “[W]e afford deference to the trial
court’s factual determinations, based, as they are, on firsthand observations unavailable to
us on appeal.” (People v. Barnwell (2007) 41 Cal.4th at p. 1053 [discharge of sitting
juror].) Based on its determination that JN2 and JN7 were credible, substantial evidence
supports the trial court’s finding that no misconduct occurred. In any event, we
independently conclude that the unidentified juror’s comments could not have affected
the verdict. Such fleeting comments as those made by the unidentified juror were
innocuous and insignificant compared with the credible evidence presented by the
prosecution that defendant drank excessive amounts of alcohol before getting in his car
and driving recklessly on El Camino with conscious disregard of the danger to life his
conduct posed. The new trial motion was properly denied.10
                                      DISPOSITION
       The judgment is affirmed.



10
   Defendant argues that the cumulative prejudicial effect of the errors in his trial require
reversal. Inasmuch as we find no errors, we necessarily find no cumulative prejudice.


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                                 _________________________
                                 Dondero, J.


We concur:


_________________________
Margulies, Acting P.J.


_________________________
Banke, J.




                            40
