People v. Wilson CA1/4 ( 2022 )

Filed 7/28/22 P. v. Wilson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A157485
v. (Contra County Super. Ct.
LEMUEL WILSON, No. 5-180922-7)
Defendant and Appellant.
Appellant, Lemuel Wilson, speeding on a highway off-ramp, lost control
of his vehicle and slammed into another car driven by a mother taking her
three sons home from a drive-in movie. After Wilson’s car came to rest, he
got out, refused help from several bystanders, and escaped on foot as the
mother screamed over her children, two of whom died at the scene. The
youngest child, an infant, survived serious head wounds and other injuries.
Wilson was arrested after going to the hospital for his own injuries the
following day, when a test of his blood-alcohol concentration (BAC) showed no
alcohol in his system. A jury convicted Wilson of two counts of second degree,
implied malice murder (Pen. Code, § 187, subd. (a)), driving under the
influence of alcohol (DUI) causing great bodily injury to multiple victims
within 10 years of a prior DUI conviction (Veh. Code, §§ 23153, subd. (a),
1
23558, 23560; Pen. Code, § 12022.7, subds. (a) & (b)), and leaving the scene of
an accident (Veh. Code, § 20001, subd. (a)).
Wilson raises claims of Batson/Wheeler error (Batson v. Kentucky
(1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22 Cal.3d 258, 276–277), and
erroneous admission of evidence of advisements previously given Wilson
under Vehicle Code section 23593, which reflected the holding in People v.
Watson (1981) 30 Cal.3d 290 (Watson admonitions), both because the
evidence created a conclusive presumption that drunk driving is dangerous
and because it was hearsay; failure to instruct on lesser included vehicular
manslaughter offenses on counts 1 and 2 and simple battery on count 3,
instructional omissions claimed to be required sua sponte to clarify the
meaning of the great bodily injury enhancements; insufficiency of the
evidence of all four great bodily injury enhancements; and sentencing error
under Penal Code section 654.
We reject all his claims except one: the jury had no substantial
evidence to support its findings that the two boys who died at the scene had
been rendered comatose before they died. (Pen. Code, § 12022.7, subd. (b).)
Accordingly, we shall strike those two great bodily injury enhancements.
This does not reduce the aggregate sentence of 24 years to life.
I. BACKGROUND
It is undisputed that Wilson’s Infiniti SUV, while traveling at least 83
miles per hour on June 30, 2017, at approximately 10:58 p.m., collided with
Aida Reyes’s SUV, killing two of her children, severely injuring the third, and
also injuring her. Wilson was exiting Highway 4 at Solano Avenue in
Concord, while Reyes was lawfully entering Highway 4 at a normal speed
and was stopped at a metering light. Wilson failed to negotiate a curve on
the highway off-ramp; his car jumped the divider and hit Reyes’s Dodge
2
Durango from the rear. The back of Reyes’s vehicle was “thrashed.” It “had
been ripped open like a can of tuna” or “a sardine can.”
Reyes’s two older sons, Lorenzo,1 age 10, and Vincent, age five, were
ejected from the vehicle, both suffered massive head wounds, and they
succumbed quickly after the collision at the scene. The baby, Luciano, three
months old, was gravely injured but survived, after spending 49 days in the
hospital. Reyes herself suffered neck injuries and spent two days in the
hospital.
The key factual issue at trial was whether Wilson was driving under
the influence of alcohol. On that issue, the prosecution presented evidence
that Wilson had made a purchase for $7.27 at Town and Country Liquor in
Oakland sometime that day. The amount of the charge could have covered
three or four mini-bottles of pink Barefoot wine, which was Wilson’s “go-to”
alcoholic drink, and one or two other items. An empty four-pack carton of
Barefoot wine was also found in Wilson’s car, but no empty wine bottles were
found. Wilson had taken two selfies that day at 10:10 p.m. showing him
holding an open Barefoot mini-bottle of pink wine while seated in the driver’s
seat of his SUV.
Weighing against that evidence was the preliminary hearing testimony
of Wilson’s brother, Cortez Wilson, who had spent the day with Wilson on the
date of the collision, and who testified at the preliminary hearing that Wilson
had consumed no alcohol while they were together until 9:30 or 10:00 p.m.
The preliminary hearing transcript was read to the jury. In addition, the
first people to reach Wilson after the collision smelled no alcohol on Wilson.
1 Members of the Reyes family, other than Aida Reyes, will be referred
to by their first names only. No disrespect is intended.
3
After the collision, Wilson’s car was catapulted 267 feet and came to
rest atop a fire hydrant in the parking lot in front of Kinder’s Barbecue
restaurant. The first people on the scene were two employees of Kinder’s.
One, Torin Papp, called 911 and tried to help Wilson while he was still
trapped in his car by a deployed airbag. The other, Nicholas Okodogbe,
helped Wilson up after he fell from the car seconds later. Neither of them
smelled alcohol on Wilson’s breath, though Okodogbe came within 6 to 12
inches of Wilson’s mouth and Papp within “a couple feet,” and there was no
odor of alcohol or marijuana in Wilson’s SUV.
Wilson had blood running down his forehead and appeared dazed.
Okodogbe initially thought it was a one-car accident and did not realize
Reyes’s car was involved until he heard her screaming and crying out, “Who
killed my babies?” Two other women who had been sitting outside a gym
nearby heard a loud noise and drove up to the on-ramp, where they
encountered Reyes and her wrecked vehicle and called 911.
Okodogbe told Wilson he should sit down and rest, but Wilson
mumbled, “I got to get out of here.” Wilson dropped his cell phone, and
Okodogbe retrieved it and later turned it over to the police. Other Kinder’s
employees tried to come to Wilson’s aid, but he refused their assistance.
After one minute and 20 seconds, Wilson took off walking, but when a
restaurant employee attempted to catch up to him, Wilson ran off and evaded
capture.
The first to respond to the several 911 calls were CHP officers and
officers of the Concord Police Department, who arrived within two minutes
and pronounced Lorenzo dead without offering aid. They briefly but
unsuccessfully tried to revive Vincent. Reyes and Luciano were taken to the
hospital.
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Autopsy testimony established that Lorenzo died of severe blunt force
trauma to the head. Death was caused by “two fatal head injuries”—
dislocation of the base skull cervical vertebra and tearing of the brain stem.
Both injuries are “almost always . . . lethal” and would have led to “very rapid
death.” Tearing of the brain stem leads to “almost instantaneous death.”
Vincent likewise suffered blunt force trauma to the head. Vincent’s
head injuries caused “lots of tears in his brain” which caused him to
“immediately lose consciousness.” “Very rapidly” his heart stopped, and he
“stopped breathing.” The forensic pathologist was never asked to give a time
of death for either boy, and no time estimate was given to amplify his words,
“very rapid death.”
Little Luciano survived his lengthy stay in the hospital. He had a
shunt put into his brain to prevent seizures, and he required physical and
occupational therapy. At the time of trial, his right hand was still weaker
than his left. Reyes herself sustained neck injuries, which caused severe pain
and kept her in a neck brace for two months. Her back and neck still hurt at
the time of trial.
After attending to the victims, the police searched for Wilson in the
area of the collision, including by helicopter, but gave up after two or three
hours. By 2:00 a.m., Wilson was a named suspect based on paperwork found
in his abandoned vehicle. A CHP crash notification card was left in the door
of Wilson’s residence in Antioch. Wilson was next spotted at approximately
4:00 a.m. in the parking lot of a condominium development near the drive-in
theater where Reyes had taken her sons to the movie. Wilson was
attempting to flag down help, but the woman who saw him passed him by in
her car.
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At 8:09 a.m., CHP issued a Facebook and Twitter press release
identifying Wilson as a suspect in an automobile crash the night before that
killed two children. Wilson’s sister, Monique Wilson (Monique), soon learned
of it and began phoning family members, including their cousin, Zalinda
Wilson (Zalinda).
Sometime that morning, Wilson called his friend, Savee Pralourng, who
had helped him buy his SUV and was a cosigner on the sales contract, and he
asked her to report the vehicle stolen. She started to comply until Monique
called her and told her not to. Monique told Pralourng about the accident
and said Wilson was going to turn himself in.
At roughly 9:30 a.m. on July 1, 2017, Wilson’s wife drove him from
Antioch to his cousin Zalinda’s house in Oakland, arriving around 10:00 a.m.
Supportive relatives and friends soon began arriving. At 11:20 a.m., they all
left as a group for the hospital. Zalinda called ahead to 911 and told them
Wilson would turn himself in at Highland Hospital in Oakland. She sought a
“peaceful surrender” on his behalf. At 11:38 a.m., Wilson showed up at
Highland Hospital, seeking treatment for his injuries, accompanied by a
caravan of about five cars containing 10 to 15 relatives and friends.
Wilson’s blood was drawn at 12:08 p.m., and the results showed no
ethanol, or drinking alcohol, present. Nevertheless, by presenting expert
testimony about the elimination rate of alcohol, together with the alcohol
content of mini-bottles of Barefoot wine, the prosecution established that
Wilson could have had a BAC level of .09 percent or higher at the time of the
crash (three mini-bottles at .03 percent each). The expert testified that
everyone is alcohol-impaired and unable to safely operate a motor vehicle at
.08 percent, and most people (75 percent) are so impaired at .05 percent.
6
Among the evidence presented by the prosecution was testimony and
documentary evidence that Wilson had been given a so-called Watson
admonition on five prior occasions.2 (See Watson, supra, 30 Cal.3d at pp. 293,
298.) That statutorily required advisement, given three times when Wilson
had previously been convicted of a DUI offense and twice when he applied to
the DMV for an identification (ID) card, told him “driving under the influence
of alcohol is extremely dangerous to human life.” (Veh. Code, § 23593.) He
was further advised that if he drove while intoxicated and someone was
killed as a result, he could be “charged with murder.” When he applied for
one of the ID cards, he signed a statement acknowledging he had read and
“agree[d] with” the Watson admonition. A DMV expert testified about
Wilson’s DMV records and driving history, including that he had suffered
three prior convictions for speeding in addition to his history of three prior
misdemeanor DUI convictions in 2005, 2006 and 2010.
Evidence of Wilson’s uncharged DUI violations and other driving
history evidence was admitted under Evidence Code section 1101,
subdivision (b) solely on the issues of “knowledge and motive.” The evidence
of Wilson’s driving history came in both documentary form (exhibits 32–42)
and in the form of testimony by a DMV expert. The court ruled it was
2 The prosecutor moved in limine for permission to introduce a packet
of documentary evidence of Wilson’s DMV driving history, including
interpretive expert evidence by a DMV employee, which included evidence of
Wilson’s three prior DUI convictions and three speeding convictions, in
addition to the Watson admonitions. The Watson admonition appeared in
small print on the ID application. The prosecutor’s in limine motion was
granted with the exception of certain details, but there was no separate
objection to admission of the Watson admonitions, independent of the other
evidence of Wilson’s driving history. The court admitted evidence of the
Watson admonitions Wilson had received. The documentary evidence
(exhibits 32–41) was admitted without objection.
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relevant to the issue of knowledge as it relates to implied malice on the
murder counts, and the Watson admonitions specifically were relevant to
motive on the fleeing count. The judge found the evidence far more probative
than prejudicial.
The jury was given a limiting instruction, which it is presumed to have
followed. (People v. Gonzalez (2021) 12 Cal.5th 367, 409.) The judge
instructed the jury that the evidence of Wilson’s prior DUI convictions was
admitted “for the limited purpose of deciding whether or not the defendant
knew that driving under the influence of alcohol was dangerous to human life
and whether the defendant deliberately acted with conscious disregard for
human life.” He told them the prior conviction evidence was to be used “for
the limited purpose of determining the defendant’s knowledge and motive.”
The jury was required to find the prior convictions true by a preponderance of
the evidence before it used them for any purpose. The limiting instruction,
however, was not expressly tied to the Watson admonitions; it related to
Wilson’s DMV record of uncharged offenses in general. Defense counsel did
not request a special instruction telling the jury how it could use evidence of
the Watson admonitions.
The jury found Wilson guilty of all charges and found all enhancements
true. The court sentenced Wilson to an aggregate term of 24 years to life,
comprised of an indeterminate term of 15 years to life each on the two
murder counts, imposed concurrently, and a nine-year determinate term,
composed of a two-year middle term sentence on count 3 (DUI with injury
with prior DUI within 10 years), three years each on the two great bodily
injury enhancements under Penal Code section 12022.7, subdivision (a),
imposed consecutively, five years on each of two enhancements under
subdivision (b) of the same section (stayed under Pen. Code, § 654), and one
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year (one-third the middle term) imposed consecutively on count 4 (leaving
the scene of an accident). (Veh. Code, § 20001, subds. (a) & (b)(2).)
II. DISCUSSION
A. The Batson/Wheeler Issue
1. The Law
“ ‘ “Both the federal and state Constitutions prohibit any advocate’s use
of peremptory challenges to exclude prospective jurors based on race.” ’ ”
(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 759.)
“ ‘ “Doing so violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the California
Constitution.” ’ ” (Id. at pp. 759–760.) “The law also recognizes ‘ “a
rebuttable presumption that a peremptory challenge is being exercised
properly, and the burden is on the opposing party to demonstrate
impermissible discrimination.” ’ ” (Id. at p. 760.)
A Batson/Wheeler motion proceeds on a three-step analysis. First, the
burden is on the movant to make a prima facie showing of “ ‘discriminatory
purpose.’ ” (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) A
prima facie case consists of evidence, the totality of which allows the trial
judge to draw an inference of discriminatory purpose. (Ibid.) The prima facie
showing requirement sets a “ ‘low threshold.’ ” (People v. Battle (2021)
11 Cal.5th 749, 773 (Battle), quoting People v. Scott (2015) 61 Cal.4th 363,
384 (Scott).) Second, once a defendant “makes a prima facie showing, the
burden shifts to the [prosecutor] to come forward with a neutral explanation
for challenging” the prospective juror in question. (Batson, supra, 476 U.S. at
p. 97.) Unless “ ‘discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral.’ ” (Purkett v.
Elem (1995) 514 U.S. 765, 768.) Third, if the proffered justification is
9
race-neutral, then the court must consider whether the defendant has proved
it was more likely than not the peremptory challenge was based on
“purposeful discrimination.” (Batson, at p. 98.) On the third step, the court
focuses on the subjective genuineness of the prosecutor’s explanations, not
their objective reasonableness. (People v. Silas (2021) 68 Cal.App.5th 1057,
1104.)
2. The Prosecutor’s Peremptory Challenges and the Defense
Batson/Wheeler Motion
Defense counsel made a Batson/Wheeler motion when the prosecutor
exercised his seventh peremptory challenge. This was the second of the
prosecutor’s peremptory challenges that he had used to take an
African-American woman off the jury. The prosecutor used his fourth
peremptory challenge on Ms. H., Juror No. 16. Ms. H. had answered “no” to
all the questions on the juror questionnaire designed to elicit answers
showing the juror’s possible biases, and the judge had no further questions
for her when she entered the box. In response to the prosecutor’s voir dire,
she said she could be fair and base her verdict on the evidence alone, and she
expressed no difficulty with the concept of implied malice. She did not
believe the burden of proof is too high in criminal cases, but as we shall
discuss, she did express some reluctance to rely on circumstantial evidence.
The prosecutor used his seventh peremptory challenge on Ms. K., Juror
No. 38. Ms. K., too, answered “no” to all the questions on the questionnaire
that sought to elicit biases. She said she could be fair and would “go with the
facts,” but she admitted “struggling” with the single-witness rule.
In his oral motion outside the jury’s presence, defense counsel merely
identified the prospective jurors in question, noted they were African-
American women who had indicated they could be fair, and noted both were
peremptorily challenged by the prosecutor. Wilson points out on appeal that
10
African-Americans in general and African-American women comprise
separate protected classes. (People v. Holmes, McClain and Newborn, supra,
12 Cal.5th at p. 759; People v. Cornwell (2005) 37 Cal.4th 50, 70 & fn. 4;
People v. Motton (1985) 39 Cal.3d 596, 600, 605–606, 608), a point that was
not made in the trial court. At times Wilson seems to premise his appellate
arguments on the idea that the Batson/Wheeler motion was based on
discriminatory strikes against African-American women. That is not clear
from the transcript, however.3 We construe Wilson’s trial motion as being
based on challenges to African-Americans generally, and any claim that it
was limited to African-American women has been forfeited by failure to spell
it out at trial. (See Cornwell, at pp. 70–71, fn. 4.)
After defense counsel made his motion, the judge asked the prosecutor
if he had any response on the adequacy of the prima facie showing. The
prosecutor responded: “Yes, I don’t believe there is one. Thank you, Your
Honor. There is, I believe, one African-American juror remaining on the
panel, and both of those jurors clearly expressed some concerns when I
questioned them about various issues, particularly single witness rule for
Ms. [H.] and circumstantial evidence for (Juror No. 28) [sic]. And so I—for
those obvious reasons, kicked or challenged those jurors. I don’t believe a
prima facie showing has been made.”
3 The record shows there were four African-Americans altogether on
the panel: one male who was excused for cause over defense objection; the
two women who were peremptorily challenged by the district attorney; and a
fourth individual still in the box when the Batson/Wheeler motion was made.
Whether that fourth African-American was male or female cannot be
ascertained from the record. Neither counsel nor the court identified the
juror’s sex, name or juror number. To the extent Wilson claims the
prosecutor excused all African-American women from the jury, that inference
is not warranted.
11
The court then invited defense counsel’s further remarks, and he
responded: “On the prima facie issue, we had three—we’ve had four—we’ve
had a [dearth] of African Americans in the whole panel. We’ve had four in
the box. So far one was challenged for cause over my objection, there’s one
remaining, and then there were two other women who both said they could be
fair. One of them—actually, they were both fairly extensively questioned and
they were challenged, so. We’ve had three in the box so far, two of them have
been challenged.”
3. The Trial Court’s Ruling
The trial judge indicated both attorneys’ recitations were “factually . . .
correct.” It should be noted, however, that the prosecutor reversed the
prospective jurors’ names and their answers when he referred to their voir
dire. In fact, it was Ms. H. who was reluctant to rely on circumstantial
evidence and Ms. K. (Juror No. 38, not 28) who was skeptical about the single
witness rule. The judge failed to take notice of the discrepancies in the
prosecutor’s statement.
The judge then ruled that no prima facie showing had been made,
explaining: “Just so the record is complete, the record should reflect that
[Wilson] is African American. Both counsel are Caucasian, for what it’s
worth. I don’t know that that’s relevant. [¶] Secondly, at this stage, as I
mentioned, I’m applying the standard of Johnson versus California and the
cases since then that—to determine whether there’s a prima facie showing,
that is, whether the defendant has shown based on a totality of the relevant
facts, that there’s an inference of discriminatory purpose or whether the
circumstantial evidence is sufficient to permit the court to draw an inference
that discrimination has occurred. [¶] Obviously, African Americans are a
protected class or a class that can qualify, and African American women, of
course, would also be within a class that is to be subject to consideration
12
under Batson-Wheeler. [¶] I do not find a prima facie case had been shown
based on the evidence as a whole, but I will permit [the prosecutor] to put any
supplemental comments on the record that you wish to articulate in the event
that a reviewing court disagrees with my prima facie showing—or finding.”
The prosecutor then elaborated upon his reasons for excusing the two jurors
in question. The judge declared a recess and made no further comments or
rulings.
4. The Standard of Review
In these circumstances, we review the trial court’s step-one finding of
no prima facie showing. (Scott, supra, 61 Cal.4th at pp. 385–391.) Wilson
urges us to apply a de novo standard of review, but the deferential
substantial evidence standard is the correct standard. The trial judge’s
reason for denying the motion at step one was conclusory, as Wilson points
out, but the judge did apply the correct standard for making that
determination and so stated on the record, namely that of Johnson, supra,
545 U.S. 162, discussed above. In these circumstances, reviewing a trial
court’s step-one finding, we apply a deferential standard of review to the
denial of a defendant’s Batson/Wheeler motion, considering only whether the
ruling is supported by substantial evidence. (Battle, supra, 11 Cal.5th at
p. 772; People v. Bonilla (2007) 41 Cal.4th 313, 341–343.)
The de novo standard applies only if the trial occurred before the
United States Supreme Court’s decision in Johnson and the trial court
applied the wrong standard of proof on the prima facie burden, or if it is not
possible to determine which standard of proof the trial court applied. (People
v. Rhoades (2019) 8 Cal.5th 393, 428–429.) This, however, is not such a case.
Wilson’s trial did not predate Johnson. Accordingly, de novo review is not
appropriate. The ordinary substantial evidence standard of review applies.
13
(Battle, supra, 11 Cal.5th at p. 772; People v. Silas, supra, 68 Cal.App.5th at
p. 1095.)
5. The Trial Court’s Finding of No Prima Facie Showing Was
Supported by Substantial Evidence
Wilson’s argument for why the trial judge should have found a prima
facie case rests almost entirely upon statistics, and not very meaningful
statistics because of the small numbers involved. He emphasizes that the
removal of two African-American jurors, plus a third excused for cause over
defense objection, eliminated from the jury 75 percent of the African-
Americans available to try the case. (See Batson, supra, 476 U.S. at pp. 96–
97 [in assessing a prima facie case, a relevant question may be whether there
is “ a ‘pattern’ of strikes against” an identifiable group of jurors]; People v.
Bell (2007) 40 Cal.4th 582, 598, fn. 3, overruled on other grounds in People v.
Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 (Sanchez) [although the ultimate
issue on a Batson/Wheeler motion is “ ‘not whether there is a pattern of
systematic exclusion,’ . . . a court finding a prima facie case is necessarily
relying on an apparent pattern in the party’s challenges”; “to make a prima
facie case after the excusal of only one or two members of a group is very
difficult”].) Even disregarding the challenge for cause, Wilson points out,
67 percent of all remaining African Americans in the box were removed by
the prosecutor. He points out, of course, that Wilson is also African-
American, and he claims the two peremptorily excused jurors were
questioned more extensively than any other prospective jurors. We find the
latter point unsupported by the record.
In his reply brief, Wilson suggests the prosecutor struck all the African-
American women on the jury panel. The record does not support that
conclusion, however. (See fn. 3, ante.) For this reason, Wilson’s reliance on
People v. Allen (2004) 115 Cal.App.4th 542 and People v. Arellano (2016)
14
245 Cal.App.4th 1139 is misplaced. In both of those cases, all the members of
a cognizable group had been removed by the prosecutor. (Arellano, at
pp. 1156, 1159; Allen, at p. 550.) Wilson attempts to claim this is such a case,
but no showing of the same kind has been made here.
When a trial court denies a Batson/Wheeler motion because it finds no
prima facie case of group bias was established, the reviewing court considers
the entire record of voir dire at the time the motion was made. (Scott, supra,
61 Cal.4th at p. 384.) Even though facilitation of appellate review is the
main justification by trial courts for allowing prosecutors to put their reasons
on the record after finding no prima facie case (see, e.g., People v. Zambrano
(2007) 41 Cal.4th 1082, 1105, fn. 3; People v. Turner (1994) 8 Cal.4th 137,
166–167, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th
536, 555, fn.5), we are forbidden to consider the prosecutor’s postruling
reasons for his strikes as support for the trial court’s prima facie ruling.
(Scott, at p. 390.)
A trial judge considering a Batson/Wheeler motion at step one may
base his or her ruling on the entirety of the voir dire and may “ ‘consider
nondiscriminatory reasons for a peremptory challenge that are apparent from
and “clearly established” in the record [citations] and that necessarily dispel
any inference of bias.’ ” (People v. Holmes, McClain and Newborn, supra,
12 Cal.5th at p. 760.) Thus, the standard allows for some latitude in drawing
inferences about why the prosecutor objectively might reasonably have
exercised his or her peremptory strikes. Yet, “the fact that the prosecutor
volunteered one or more nondiscriminatory reasons for excusing the juror is
of no relevance at the first stage.” (Scott, supra, 61 Cal.4th at p. 390.) Hence,
we do not consider whether the record of voir dire supports the prosecutor’s
postruling statement as to his actual reasons for excusing jurors Ms. H. and
15
Ms. K., but rather review the record of voir dire objectively to identify any
concerns a reasonable prosecutor might have had that would have led to the
peremptory strike against each prospective juror on nondiscriminatory
grounds.
It is clearly established in the record that Ms. H. struggled with the
concept of circumstantial evidence. Specifically, the prosecutor used a
hypothetical based on a family dressed in Oakland A’s fan gear riding on
BART toward the Coliseum station on game day. In the hypothetical, Ms. H.,
postulated to be a fellow BART passenger, was presented with increasing
circumstantial evidence that the family was headed to the game, but Ms. H.
felt she could not conclude they were going to the game. Even when she was
told she saw one of them drop a ticket to the game, she would “presume” they
were going to the game, but she remained “skeptical” and could not be “100
percent” sure until she saw them “hand that ticket over” at the entry to the
ballpark.
Likewise, Ms. K. expressed difficulty with the single-witness rule. The
prosecutor used a hypothetical to question prospective jurors in which a
woman named Sharon told her coworkers that she had just seen an
acquaintance named Phil riding away on a new red mountain bike, and a
coworker claimed it was his bike. Upon further investigation, Sharon and
her coworker discovered his bike chain cut and left behind, with his bike
missing. The hypothetical included the fact that the prospective juror
believed Sharon, but the question was whether he or she would require more
proof. Ms. K. responded by questioning or rejecting aspects of the
hypothetical instead of focusing on whether Sharon’s credible testimony was
enough to conclude Phil stole the bike. When the prosecutor asked if she was
“struggling” with the hypothetical or with the single-witness rule, she
16
responded, “Probably the single witness.” Indeed, the prosecutor challenged
Ms. K. for cause on this ground. Although the trial judge denied the
challenge for cause, the judge said he understood the prosecutor’s concern
and the basis for the challenge.
Thus, the record shows that a prosecutor could reasonably have
questioned whether either Ms. H. or Ms. K. would be able to follow the court’s
instructions on these or other legal concepts. In addition, one African-
American remained in the box at the time of the motion, though we cannot
tell whether he or she ultimately served on the jury. The reasons we have
hypothesized for a reasonable prosecutor’s strikes are facially neutral and do
not raise an inference of bias. That is true in spite of the prosecutor’s
step-one response to the motion, which reflected an imperfect memory of voir
dire. But the question remains whether the hypothesized race-neutral
reasons for excusing these jurors also “necessarily dispel any inference of
bias.” (People v. Holmes, McClain and Newborn, supra, 12 Cal.5th at p. 760;
Battle, supra, 11 Cal.5th at p. 773.)
In his reply brief, Wilson puts forth an argument that the prosecutor’s
strikes were racially motivated by critiquing in detail the hypotheticals used
by the prosecutor in voir dire and suggesting pretext in the prosecutor’s
conclusion that the two prospective jurors had difficulty with or resistance to
certain legal concepts. We are reluctant to credit arguments that would find
a discriminatory purpose in a prosecutor’s imperfectly conceived hypothetical.
Moreover, Wilson’s theory is supported by reference to the prosecutor’s
closing argument, when the prosecutor told the jury his theory of Monique’s
“complicity” and Zalinda’s “lies” and false claims of “lack of knowledge.” In
reviewing the Batson/Wheeler prima facie finding, however, we must focus
17
on the facts known to the trial judge when he ruled on the motion. (Scott,
supra, 61 Cal.4th at p. 384.)
We do find some support in the record outside of voir dire for Wilson’s
theory that the prosecutor may have schemed to rid the jury of African-
American women because he feared they would sympathize with Monique
and Zalinda—two African-American women whom the prosecutor later
accused of conspiring with Wilson to keep him away from authorities until
after the alcohol in his system had burned off—and such jurors might be
disinclined to convict Wilson. Wilson claims the prosecutor “viciously
attack[ed] an African-American family,” including Wilson’s sister and female
cousin, and “their family values” in his closing argument. While that may be
an overstatement, it is true the prosecutor examined the two women
vigorously on their prior inconsistent and evasive preliminary hearing
testimony, and in argument he accused them of conspiring with Wilson to
delay his arrest and of engaging in a “coverup.”
The prosecutor said nothing about their “family values,” but we agree
with Wilson that the prosecutor could conceivably have had a hidden motive
for the challenged strikes. Even if we indulge Wilson’s theory for purposes of
argument, though, Wilson has not shown that any such discriminatory
motive would have been known to or suspected by the trial judge when he
made his Batson/Wheeler ruling.4
4 The peremptory challenges in this case were exercised on April 11,
2019, and the Batson motion was heard at that time. On April 8, 2019, the
prosecutor had filed motions in limine which included a motion to impeach
Zalinda and Monique with evidence of prior DUI convictions if they denied
“general knowledge of the concept of alcohol burnoff in the DUI context.” The
in limine motion was heard on April 15, 2019. The judge ultimately ruled the
prior DUI convictions were admissible for the jury’s assessment of the
witnesses’ credibility only, and the jury was so instructed.
18
Although the district attorney’s motions in limine had been filed before
the Batson/Wheeler ruling, the record does not establish that the judge had
yet read the motions or knew of their content when he ruled on the
Batson/Wheeler motion. (See fn. 4, ante.) Defense counsel did not point out
the prosecutor’s intention to impeach Monique and Zalinda with their prior
DUI convictions, much less his suspected intention to accuse them of helping
Wilson delay his surrender. If Wilson’s trial counsel shared his appellate
counsel’s suspicions about the prosecutor’s motives, then he should have
raised those suspicions in his Batson/Wheeler motion as part of his prima
facie showing. He could have used the prosecutor’s in limine motion to
impeach Monique and Zalinda with their prior DUI convictions as evidence to
support his motion. (See fn. 4, ante.)
The prosecutor’s theory, as later explained to the trial judge, was that
the two women “conspired with [Wilson] to delay his turn-in at the hospital to
prevent the acquisition of a blood sample” that would show he had been
drinking the night before. This came out at the hearing of the in limine
motions on April 15, 2019, but that was four days after the judge ruled on the
Batson/Wheeler motion. (See fn. 4, ante.)
The timing convinces us that Wilson’s current theory of discriminatory
strikes must be rejected. Wilson cannot use the prosecutor’s closing
argument to cast doubt on whether his peremptory challenges were
discrimination-free. Wilson’s theory is speculative, constructed from the
record on appeal after the fact. Though it may sound plausible in hindsight,
this theory cannot form the basis for reversal because (1) the Batson/Wheeler
motion was not limited to African-American women, and (2) the theory of
discriminatory strikes put forth on appeal was not presented to the trial
judge.
19
Even if the prosecutor had hidden motives for excusing African-
American women, if those motives were not suspected by the trial judge at
the time of the Batson/Wheeler ruling, and if they were not pointed out as
part of the Batson/Wheeler motion, then no inference of discriminatory
purpose arises from the removal of two female African-Americans from this
male African-American’s jury. Thus, there was no “inference of bias” for the
plausible explanations of the prosecutor’s strikes to “dispel.” The rebuttable
presumption favoring the legitimacy of the prosecutor’s peremptory
challenges was never rebutted. Considered under the proper deferential
standard of review, the judge’s step-one Batson/Wheeler ruling is supported
by substantial evidence and does not require reversal or remand.5
5 Even assuming Wilson made a sufficient prima facie showing at step
one of the Batson/Wheeler proof framework, as we read the record the trial
court implicitly accepted the prosecutor’s stated reasons for exercising the
peremptory challenges at issue here as nondiscriminatory and neutral. That
finding is supported by the record no matter what standard of review applies
to it.
We note that the Batson/Wheeler framework was superseded by
statute in 2020 with the enactment of Assembly Bill No. 3070 (Stats. 2020,
ch. 318), which codified new antidiscrimination rules governing jury selection
under Code of Civil Procedure section 231.7, effective in criminal cases
January 1, 2022 (see id., § 231.7, subd. (k), added by Stats. 2020, ch. 318, § 2),
and in civil cases Jan. 1, 2026 (§ 213,7, added by Stats. 2020, ch. 318, § 3).
Section 231.7 makes no mention of the need for a prima facie showing of
purposeful discrimination and simply says that “upon objection . . . based on
this section” (id., subd. (c)), the party exercising a peremptory challenges
“shall state the reasons the challenge [was] . . . exercised” (ibid.). Section
231.7 changes the standard of review of trial court rulings denying objections
of discriminatory use of peremptory challenges from substantial evidence to
de novo review. (Id., subd. (j).) It also provides a list of 13 presumptively
invalid reasons, many of which have been accepted in the Batson/Wheeler
case law as neutral (e.g., having had a negative experience with law
enforcement officers (id., subd. (e)(1)); expressing a belief that law
20
B. Conclusive Presumption or Directed Verdict by Admission of
Evidence of the Prior Watson Admonitions
Wilson contends that by allowing the People to introduce evidence of
the prior Watson admonitions given to him, the court effectively created a
conclusive presumption and directed a verdict in violation of due process.6
(U.S. Const., 14th Amend.) This claim was not preserved for appeal. Wilson
did not object to the evidence on the ground he asserts here. His only
objections were that it was irrelevant, cumulative, and more prejudicial than
probative under Evidence Code section 352. At no point did Wilson’s trial
counsel argue the evidence created a “conclusive presumption” that driving
under the influence is dangerous or “directed a verdict” on implied malice
murder. His claim is therefore forfeited. (Evid. Code, § 353.) (See fn. 6,
ante.)
Wilson’s Evidence Code section 352 objection did not preserve the issue
he now raises. In People v. Partida (2005) 37 Cal.4th 428, the defendant
objected to evidence as being more prejudicial than probative. (Id. at p. 431.)
On appeal, he argued that admission of the evidence violated his right to due
process. (Ibid.) Partida held the defendant could “argue that the asserted
error in overruling the trial objection had the legal consequence of violating
enforcement officers engage in racial profiling (id., subd. (e)(2)); the
prospective juror’s manner of dress, attire, or personal appearance (id.,
subd. (e)(9)); the prospective juror’s lack of rapport, body language or
demeanor (id., subd. (g)(1) (B)); or the prospective juror’s answers showed
lack of intelligence or confusion (id., subd. (g)(1)(C)). Section 231.7 had not
been enacted at the time this case was tried, but even had it been in force, we
find it notable that the reasons that the prosecutor placed on the record for
having exercised the challenged peremptory challenges here would not have
been presumptively invalid under this new scheme.
The Watson admonitions were not the subject of independent
6
discussion—or independent objection—in the trial record. This further
supports our finding of forfeiture.
21
due process.” (Ibid.; see id. at pp. 435–436.) The defendant’s claim “that due
process required the court to exclude the evidence for a reason not included in
the trial objection” was forfeited. (Id. at p. 431; see id. at p. 438 [such
assertion “is not cognizable”].) Under Partida, Wilson’s due process claim is
preserved to the extent he argues the evidence was more prejudicial than
probative. But that is not what Wilson argues. Rather, he claims admission
of the evidence violated due process by creating a conclusive presumption or
directed verdict. That claim is forfeited because Wilson did not object to the
evidence on that ground in the trial court. (People v. Arredondo (2019)
8 Cal.5th 694, 710.)
Wilson also contends “the trial court’s ruling was based on existing
California law, thereby rendering any due process objection futile.” Indeed,
California trial courts have routinely admitted prior Watson admonitions as
evidence that the defendant knew of the danger to life posed by drunk driving
and consciously disregarded the risk. (People v. Felix (2019) 41 Cal.App.5th
177, 185 [defendant’s knowledge of dangerousness of driving drunk may be
obtained “ ‘from the admonition required by Vehicle Code section 23593 upon
a DUI-related conviction’ ”]; e.g., Munoz, supra, 31 Cal.App.5th at p. 149;
People v. Lopez (2019) 31 Cal.App.5th 55, 59; People v. Yushchuk (2018)
28 Cal.App.5th 120, 123.) In any case, the issue before the court was not
whether the admonitions separately were admissible, but whether Wilson’s
driving history as a whole was admissible. Wilson reasons that trial counsel
was not required to make futile objections to preserve a claim of error. But
he does not explain how the existence of California law on the admissibility of
driving history evidence in a DUI trial excuses trial counsel from failing to
22
object to a perceived violation of the federal Constitution.7 Wilson’s claim is
forfeited.
More fundamentally, this was an evidentiary ruling, not a jury
instruction or a comment from the bench. Indeed, almost all of Wilson’s
factual argument on this issue consists of quoting the prosecutor’s closing
argument to the jury. But instead of accusing the prosecutor of misconduct,8
Wilson recasts the issue as one of judicial error by citing a string of cases
forbidding courts to direct a verdict or create a conclusive presumption.
(Yates v. Aiken (1988) 484 U.S. 211, 214–217 [burden-shifting jury
instruction]; Rose v. Clark (1986) 478 U.S. 570, 578–581 [directed verdict per
se reversible, whereas jury instruction shifting burden of proof subject to
harmless error analysis]; People v. Flood (1998) 18 Cal.4th 470, 501–503 [jury
instruction removing one element from jury subject to harmless error
analysis]; People v. Godinez (1992) 2 Cal.App.4th 492, 501–503 [jury
instruction that “ ‘[h]omicide is a reasonable and natural consequence to be
expected in a gang attack’ ” (italics omitted) was improper because it
“deprive[d] the defendant of the right to a jury determination of relevant
factual issues”; error not harmless under Chapman standard (Chapman v.
California (1967 386 U.S. 18 (Chapman)]; People v. Beltran (2007)
157 Cal.App.4th 235, 240, fn. 4, 245–248 [court gave instruction allowing jury
to find defendant had BAC of .08 percent while driving if two tests
7 Wilson makes no claim in his opening brief that his trial counsel was
constitutionally ineffective for failing to object. Any such suggestion in his
reply brief comes too late. (People v. Silveria and Travis (2020) 10 Cal.5th
195, 255.)
8 Any potential claim of prosecutorial misconduct was forfeited by
failure to object and request an admonition. (People v. Jackson (2016)
1 Cal.5th 269, 367.)
23
administered within three hours thereafter showed BAC of .08 percent or
more; held, instruction, though framed as permissible inference, should not
have been given in case involving “rising alcohol defense”; error not harmless
under Chapman]; see Veh. Code, § 23153, subd. (b) [statutory source of
erroneous instruction in Beltran, calling the rule a “rebuttable presumption”
(Beltran, at p. 241)].)
We do not doubt the rule espoused by Wilson or its application in the
cited cases. We note, however, that none of the cited cases found
constitutional error of this type in the mere admission of evidence. Rather, a
misguided jury instruction was involved in each case. Thus, an utterance
from the bench has been recognized as creating an impermissible mandatory
presumption when it removes an issue from the jury (see People v. Godinez,
supra, 2 Cal.App.4th at pp. 501–503; People v. Beltran, supra,
157 Cal.App.4th at pp. 240, fn. 4, 245), but Wilson fails to convince us that
the admission of evidence which leads the jury by logical inference to the
finding of an elemental fact is likewise error. The general rule is that an
error in admitting evidence does not violate due process unless it renders the
trial fundamentally unfair. (People v. Hardy (2021) 65 Cal.App.5th 312, 329,
fn. 8; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Wilson’s
trial was not fundamentally unfair.
Responding to the Attorney General’s argument that the challenged
ruling was an evidentiary one, not a jury instruction, Wilson contends the
conclusive presumption inheres in the Watson admonition itself, regardless of
how it came before the jury. The admonition itself, however, does not create
a mandatory presumption. “A presumption is an assumption of fact that the
law requires to be made from another fact or group of facts found or
otherwise established in the action. A presumption is not evidence.” (Evid.
24
Code, § 600, subd. (a).) “An inference is a deduction of fact that may logically
and reasonably be drawn from another fact or group of facts found or
otherwise established in the action.” (Id., subd. (b).) The Watson admonition
does not provide that any particular fact follows from its warning of
dangerousness, except that one who drives drunk and kills someone “can be
charged with murder,” which is a simple statement of the Watson holding, a
“question of law not open to dispute.” (People v. Godinez, supra,
2 Cal.App.4th at p. 502.)
Wilson argues: “Implied malice murder has a physical component (the
nature of the act) and a mental component (the defendant’s mental state).
[Citations.] ‘The physical component is satisfied by the performance of “ ‘an
act, the natural consequences of which are dangerous to life.’ ” ’ ” “The
Watson admonishment,” he continues, “especially when linked to a Vehicle
Code statute, created a conclusive presumption and directed verdict
regarding the physical component of implied malice.” In other words, Wilson
argues that evidence of the prior admonitions compelled the jury to find his
driving was dangerous to life. It did not. In fact, no special instruction was
given on the jury’s appropriate use of the Watson admonitions at all, but the
jurors were told to use the uncharged conviction evidence in general only to
prove “knowledge” or “motive.”
Proof of the admonitions raised a strong inference that Wilson was
aware of the risk to human life, which in turn supported a finding of the
elemental fact that he acted in conscious disregard of that risk, but no true
presumption, conclusive or otherwise, was involved. (See People v. Yushchuk,
supra, 28 Cal.App.5th at pp. 126–130 [distinguishing presumptions from
inferences]; People v. Beltran, supra, 157 Cal.App.4th at pp. 240–244 [same].)
25
Wilson argues drunk driving is not extremely dangerous, insisting that
“[d]riving under the influence occurs on a daily basis without accident, injury,
or death.” That’s like saying Russian roulette is not dangerous to human life
because five out of six times when the trigger is pulled no one gets hurt. That
drunk driving is dangerous to human life is not subject to serious dispute and
has long been recognized by the California courts. (Burg v. Municipal Court
(1983) 35 Cal.3d 257, 262 [“The drunk driver cuts a wide swath of death,
pain, grief, and untold physical and emotional injury across the roads of
California and the nation.”]; People v. Duroncelay (1957) 48 Cal.2d 766, 772
[“The incidence of death and serious injury on the highways has undeniably
assumed tragic dimensions and has been due in a significant degree to the
effects of alcohol upon drivers.”]; Helmandollar v. Department of Motor
Vehicles (1992) 7 Cal.App.4th 52, 57 [“numerous, dangerous, and deadly risks
associated with drinking and driving”].)
That said, the Watson admonitions did not create a conclusive
presumption that Wilson’s actual driving was dangerous to human life. On
that issue, the court instructed the jury, “If you conclude that the defendant
committed the uncharged offenses, that conclusion is only one factor to
consider along with all the other evidence.” Wilson’s speed and his loss of
control of the vehicle were sufficient to prove beyond a reasonable doubt his
driving was dangerous to human life. There is no reason to suspect that the
jurors overlooked these facts in reaching their guilty verdicts or that they
acted on a conclusive presumption instead of evidence. (See People v. Ortiz,
supra, 109 Cal.App.4th at pp. 112–113, 115–116 [grossly reckless driving,
known to the defendant to be dangerous, may form the basis of a murder
conviction, even if alcohol is not involved].)
26
The Watson admonitions were just one piece of evidence showing
Wilson’s knowledge of the danger of drinking and driving. Evidence of his
prior experiences with DUI prosecutions, convictions, and consequences laid
out for the jury a picture of a man who had been warned repeatedly, not just
by the admonitions, but by his entire experience in the legal system, as
explained by the trial judge in ruling on the prosecutor’s in limine motion:
Wilson’s consequences “includ[ed] being placed on probation, being sentenced
to jail, having fines imposed, being ordered to participate in a DUI program,
having [his] license restricted or suspended and having an interlock device
placed on [his] car or ordered to be placed on [his] car[. These] are all
sanctions that communicate to a person with driving under the influence
convictions that this conduct is extremely dangerous.” Yet, Wilson does not
challenge the admissibility of the prior conviction evidence or any of the rest
of the driving history evidence. He alleges error only in the admission of the
Watson admonitions.
The jury certainly was not compelled by the Watson admonitions to find
Wilson had consumed alcohol before or while driving on the night in question.
The jury’s findings of guilt on counts 1 and 2 depended upon their evaluation
of evidence distinct from the Watson admonitions and in addition to Wilson’s
driving history, including the selfies Wilson took 48 minutes before the crash
depicting himself in the driver’s seat of his SUV holding an open, half empty
mini-bottle of Barefoot wine, and the expert’s testimony about his
reconstructed BAC at the time of driving. The trial judge did not err in
admitting exhibits 32 to 42 and the accompanying expert DMV testimony for
the limited purpose of supporting a finding of knowledge or motive. The
judge expressly relied on a slew of appellate cases in granting the
27
prosecutor’s in limine motion.9 No separate objection was raised to the
Watson admonitions within those exhibits and testimony, nor was a special
instruction on the jury’s use of the admonitions requested by the defense.
(See fn. 6, ante.)
Even assuming admission of evidence of the Watson admonitions
violated due process by creating a conclusive presumption that DUI is
dangerous to human life, the error was harmless beyond a reasonable doubt,
for the jurors knew drunk driving was dangerous before ever setting foot in
the courtroom. (See Rose v. Clark, supra, 478 U.S. at pp. 579–581 [applying
harmless error rule of Chapman, supra, 386 U.S. 18 (Chapman) to erroneous
jury instruction that created a presumption]; People v. Vanegas (2004)
115 Cal.App.4th 592, 602 [same].) Even without evidence of a Watson
admonition, it is commonly understood that driving under the influence of
alcohol is dangerous. (Missouri v. McNeely (2013) 569 U.S. 141, 160 [“ ‘No
one can seriously dispute the magnitude of the drunken driving problem’ ”];
People v. Brogna, supra, 202 Cal.App.3d at p. 709 [that drunk driving is
“inherently dangerous” is a “simple fact [that] has been made well known to
all segments of our society through virtually every form of mass media”].)
Our Supreme Court has even said a defendant is “presumed [to be] aware of
the hazards of driving while intoxicated.” (Watson, supra, 30 Cal.3d at
p. 300.)
9The court relied on: People v. Moore (2010) 187 Cal.App.4th 937, 943;
People v. Ortiz (2003) 109 Cal.App.4th 104, 113; People v. Garcia (1995)
41 Cal.App.4th 1832, 1850, disapproved on other grounds in People v.
Sanchez (2001) 24 Cal.4th 983, 991, fn. 3, overruled on another ground in
People v. Reed (2006) 38 Cal.4th 1224, 1228–1229; People v. Johnson (1994)
30 Cal.App.4th 286, 291–292; People v. Murray (1990) 225 Cal.App.3d 734,
746; People v. Brogna (1988) 202 Cal.App.3d 700, 709, and People v.
McCarnes (1986) 179 Cal.App.3d 525, 534.
28
The jury’s guilty verdict on the charged DUI (count 3) reflects its
finding that Wilson had consumed alcohol, resulting in his “mental or
physical abilities” becoming “so impaired” that he was “no longer able to drive
a vehicle with the caution of a sober person, using ordinary care, under
similar circumstances.” Moreover, the evidence showed that Wilson had been
speeding on the night of the collision—driving 83 miles per hour when the
highest speed at which the off-ramp could safely be negotiated was 51 miles
per hour—and that he failed to negotiate the off-ramp safely, which was a
“major factor” in the collision. He thus violated at least two sections of the
Vehicle Code on the off-ramp before losing control of his vehicle: exceeding
the basic speed limit (Veh. Code, § 22350) and making an unsafe turning
movement (Veh. Code, § 22107). Given this overwhelming evidence that
Wilson’s driving was dangerous to human life, any error in admitting the
Watson admonitions was harmless beyond a reasonable doubt. (Chapman,
supra, 386 U.S. at p. 24.)
C. Wilson’s Hearsay Issue Is Forfeited
Wilson’s final argument about the inadmissibility of the Watson
admonitions is that they were hearsay under California law, and specifically
under Sanchez, supra, 63 Cal.4th 665, and their admission deprived him of
his Sixth Amendment right to confrontation. He did not interpose a hearsay
or confrontation clause objection at trial, however, thereby forfeiting his
present claim. (Evid. Code, § 353; People v. Clark (2016) 63 Cal.4th 522, 574
[hearsay]; People v. Arredondo, supra, 8 Cal.5th at p. 710 [confrontation
clause].) Nor did Wilson raise hearsay or confrontation clause grounds in
opposing the prosecutor’s in limine motion. And the trial postdated both
Sanchez and Crawford v. Washington (2004) 541 U.S. 36, which leaves
Wilson without an argument that objection would have been futile. (People v.
Amezcua and Flores (2019) 6 Cal.5th 886, 911 [forfeiture applied in
29
post-Crawford case]; cf. People v. Perez (2020) 9 Cal.5th 1, 9 [“failure . . . to
object at trial before Sanchez was decided did not forfeit a claim on appeal
based upon Sanchez”]; People v. Rangel (2016) 62 Cal.4th 1192, 1215 [“in a
case tried before Crawford, a defendant does not forfeit a Crawford challenge
by failing to raise a confrontation clause objection at trial”].) Wilson’s
hearsay argument is foreclosed by forfeiture.
D. Vehicular Manslaughter Offenses as Lesser Included Offenses to
Murder
Part of the instructional conference occurred off the record, but Wilson
maintains that the judge’s summary afterwards shows his trial attorney
requested jury instructions on three lesser offenses: vehicular manslaughter
(Pen. Code, § 192, subd. (c)), vehicular manslaughter while intoxicated (Pen.
Code, § 191.5, subd. (b)), and gross vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a)).10 The trial judge determined the vehicular
manslaughter offenses were lesser related offenses and refused the
instructions upon the prosecutor’s objection. Applying a de novo standard of
review (People v. Waidla (2000) 22 Cal.4th 690, 733), we hold this decision
was correct (see, e.g., People v. Bettasso (2020) 49 Cal.App.5th 1050, 1057–
1059).
A trial court must instruct sua sponte on lesser included offenses
supported by substantial evidence, even if the defendant objects for tactical
reasons. (People v. Breverman (1998) 19 Cal.4th 142, 154–155 [superseded on
another ground by amendment of Pen. Code, § 189 not relevant here]; see
10Because the instructions were initially discussed informally and not
reported, it is not clear to us from the record that defense counsel actually
requested all three instructions. We treat inclusion of the instructions
identically, however, so we accept for purposes of our discussion the
characterization by Wilson’s appellate counsel.
30
Pen. Code, § 1159.) The rule is intended to prevent the strategy, ignorance,
or mistakes of either party from presenting the jury with an unwarranted
all-or-nothing choice, to encourage a verdict no harsher or more lenient than
the evidence merits, and to protect the jury’s truth-ascertainment function.
(Breverman, at p. 155.) On the other hand, if a lesser offense is determined to
be only a lesser related offense, the court is prohibited to instruct on it unless
both parties agree. (People v. Jennings (2010) 50 Cal.4th 616, 668; People v.
Birks (1998) 19 Cal.4th 108, 136 (Birks).) The Birks rule is grounded in the
separation of powers and in the belief that a contrary rule gives the
defendant an unfair advantage at trial. (Birks, at pp. 116–136 [overruling
People v. Geiger (1984) 35 Cal.3d 510].)
A lesser offense is necessarily included within a charged offense “if
under the statutory definition of the charged offense it cannot be committed
without committing the lesser offense, or if the charging allegations of the
accusatory pleading include language describing the offense in such a way
that if committed as specified the lesser offense is necessarily committed.”
(People v. Geiger, supra, 35 Cal.3d at p. 517, fn. 4.) “ ‘The elements test is
satisfied if the statutory elements of the greater offense include all of the
statutory elements of the lesser offense, such that all legal elements of the
lesser offense are also elements of the greater.’ ” (People v. Robinson (2016)
63 Cal.4th 200, 207.) A lesser related offense differs in that it requires proof
of at least one element not included in the greater alleged offense. (People v.
Hicks (2017) 4 Cal.5th 203, 209 [defendant tried for murder and found guilty
of gross vehicular manslaughter while intoxicated could be retried for murder
because the conviction was on a lesser related offense]; Birks, supra,19 Cal.4th at pp. 119–120.)
31
Wilson argues the three vehicular manslaughter offenses were lesser
included offenses of murder under the accusatory pleading test. The
information alleged murder, incorporating the statutory definition, with no
elaboration as to how the murder was committed and no additional facts
alleged.11 There was no allegation that a car or drunk driving was involved.
We therefore must apply the statutory elements test to decide Wilson’s claims
of instructional error. (People v. Robinson, supra, 63 Cal.4th at p. 207; People
v. Fontenot (2019) 8 Cal.5th 57, 65.) The accusatory pleading test is
inapplicable and offers no support for a different outcome.12
“[A] defendant has no unilateral right to an instruction on an
uncharged offense that is not necessarily included within the charged
offense.” (People v. Yeoman (2003) 31 Cal.4th 93, 129.) The Supreme Court
in People v. Sanchez, supra, 24 Cal.4th 983 held vehicular manslaughter
11The information alleged: “On or about June 30, 2017, in the County
of Contra Costa, State of California, the crime of Murder in violation of
PC187(a) (PC1203.075), a Felony, was committed in that [Wilson] did
unlawfully, and with malice aforethought murder [Lorenzo in count 1 and
Vincent in count 2], a human being.”
12 Wilson posits that evidence at the preliminary hearing must be
considered in applying the accusatory pleading test. This is a view
championed by the Sixth District in People v. Ortega (2015) 240 Cal.App.4th
956, 968, which proclaimed that “the accusatory pleading cannot be examined
in isolation.” Due process, Ortega says, “requires that the facts derived from
the preliminary hearing be factored into the accusatory pleading analysis.”
(Ibid.)
The Supreme Court, however, has never accepted this enlargement of
the scope of the accusatory pleading test. (People v. Montoya (2004)
33 Cal.4th 1031, 1036 [“to determine whether a defendant is entitled to
instruction on a lesser uncharged offense—we consider only the pleading for
the greater offense”].) Because Ortega endorses a different protocol, we
refuse to follow it, as have other courts on similar facts. (People v. Alvarez
(2019) 32 Cal.App.5th 781, 787–789; People v. Munoz (2019) 31 Cal.App.5th
143, 155–158; see People v. Bradley (2021) 65 Cal.App.5th 1022, 1038–1039.)
32
while intoxicated is not a lesser included offense to murder because it
“requires proof of elements that are not necessary to a murder conviction.
The use of a vehicle while intoxicated is not merely a ‘circumstance,’ but an
element of proof when the charge is gross vehicular manslaughter while
intoxicated. Gross vehicular manslaughter while intoxicated is not merely a
degree of murder, nor is it a crime with a lengthy pedigree as a lesser
included offense within the crime of murder.” (Id. at p. 991.) Therefore, it
“should not be treated as a lesser included offense to murder.” (Id. at p. 992.)
For the same reason, all forms of vehicular manslaughter are lesser
related offenses to murder. (See People v. Bettasso, supra, 49 Cal.App.5th at
pp. 1057–1059 [vehicular manslaughter, Pen. Code, § 192, subd. (c)]; People v.
Alvarez, supra, 32 Cal.App.5th at p. 790 [gross vehicular manslaughter while
intoxicated]; People v. Munoz, supra, 31 Cal.App.5th at pp. 155–158 [gross
vehicular manslaughter while intoxicated]; People v. Batchelor (2014)
229 Cal.App.4th 1102, 1116 [gross vehicular manslaughter].) The
prosecutor’s objection precluded the judge from acceding to Wilson’s request
for the vehicular manslaughter instructions.
E. Battery as a Lesser Included Offense to Count 3
Count 3, the only alcohol-related count, charged Wilson with causing
injury while driving under the influence of alcohol (Veh. Code, § 23153,
subd. (a)) and personally inflicting great bodily injury (Pen. Code, § 12022.7,
subds. (a) & (b)) on more than one victim (Veh. Code, § 23558), within 10
years of suffering a prior DUI conviction (Veh. Code, § 23560). Wilson
contends the court should have instructed sua sponte on simple battery (Pen.
Code, § 242) as a lesser included offense. Not so.
Battery is statutorily defined as “any willful and unlawful use of force
or violence upon the person of another.” (Pen. Code, § 242.) Thus, the crime
of battery has two elements: (1) a use of force or violence that is (2) willful
33
and unlawful. (People v. Miranda (2021) 62 Cal.App.5th 162, 173, review
granted June 16, 2021, S268384.) The first element is satisfied by any
touching (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12, abrogated on other
grounds in People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1189), but no
such touching is required under Vehicle Code section 23153, subdivision (a).
A person can drive under the influence and “proximately cause” injury,
as is required for a DUI with injury (Veh. Code, § 23153, subd. (a)) without
applying force to another person, as is required for battery. Consider a
drunken driver who runs a stop sign and negligently cuts in front of another
car, which swerves around him and hits a barrier, injuring that car’s driver.
The drunken driver has violated Vehicle Code section 23153 by proximately
causing the victim’s injuries. (See People v. Bland (2002) 28 Cal.4th 313, 335
[defining proximate causation].) CALCRIM No. 2100, defining an act as a
cause “if the injury is the direct, natural, and probable consequence of the act
and the injury would not have happened without the act,” was given in this
case.
In the foregoing scenario, however, the drunk driver has not applied
“force or violence upon the person” of the victim and therefore has not
committed battery. (See People v. Marshall (1997) 15 Cal.4th 1, 38 [“a
battery cannot be accomplished without a touching of the victim”].) Thus, a
violation of Vehicle Code section 23153 does not necessarily result in a
violation of Penal Code section 242. Nor was there any pleading of the
offense that would have made battery a lesser included offense. Accordingly,
the trial judge was not obligated to instruct the jury sua sponte on battery.
And in any case, employing a Watson standard of review (People v. Hicks,
supra, 4 Cal.5th at p. 215), we find no reasonable probability Wilson would
34
have been convicted solely of battery on count 3, even if a battery instruction
had been given.
F. Adequacy of Definition of the Phrase “Personally Inflicts” Great
Bodily Injury (CALCRIM Nos. 3160 and 3161)
Next, Wilson claims the trial judge misinstructed the jury on what it
means to “personally inflict[] great bodily injury” under Penal Code section
12022.7, subdivisions (a) and (b) by not further defining the phrase
“personally inflicts.” We reject his contention for three reasons.
First, he did not request a modification of the standard CALCRIM
instructions (CALCRIM Nos. 3160 & 3161) and thereby forfeited any claim of
error on appeal. A trial court is not required to define a phrase in a pattern
instruction that incorporates statutory language and is understandable in
ordinary everyday meaning, correct in law, and responsive to the evidence,
unless a litigant requests modification. (See People v. Covarrubias (2016)
1 Cal.5th 838, 901, abrogated on other grounds in People v. Diaz (2015)
60 Cal.4th 1176, 1190; People v. Castaneda (2011) 51 Cal.4th 1292, 1348,
abrogated on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 100;
People v. Johnson (1993) 6 Cal.4th 1, 52 [failure to request clarifying
instruction bars appellate review], overruled on other grounds in People v.
Rogers (2006) 39 Cal.4th 826.)
Second, no specialized legal definition of “personally inflicts” was
needed to clearly convey the concept to the jury. According to Wilson, the
statutory element of “personally inflict[ing] great bodily injury” has a “legal
definition.” The phrase “applies only to a person who himself inflicts the
injury.” (People v. Cole (1982) 31 Cal.3d 568, 572.) “Personally inflict” means
“ ‘done in person,’ ” “ ‘direct from one person to another.’ ” (Id. at p. 572.) “To
‘personally inflict’ an injury is to directly cause an injury, not just to
proximately cause it.” (People v. Wilson (2013) 219 Cal.App.4th 500, 511–
35
512; accord, People v. Rodriguez (1999) 69 Cal.App.4th 341, 348–349.) We do
not disagree with these quoted passages, but we think these elaborations are
clear from the statutory language itself, carried over into CALCRIM
Nos. 3160 and 3161. “When a word or phrase ‘ “is commonly understood by
those familiar with the English language and is not used in a technical sense
peculiar to the law, the court is not required to give an instruction as to its
meaning in the absence of a request.” ’ ” (People v. Estrada (1995) 11 Cal.4th
568, 574.)
The Supreme Court has decided there is no technical or specialized
legal meaning for the phrase “personally inflicts”; its statutory meaning is
the same as its nonlegal meaning. (People v. Cross (2008) 45 Cal.4th 58, 67–
68 (Cross); People v. Cole, supra, 31 Cal.3d at p. 572; see People v. Ollo (2021)
11 Cal.5th 682, 687–688.) People v. Modiri (2006) 39 Cal.4th 481, 493 defined
the term as follows: “Commonly understood, the verb, ‘to inflict,’ means ‘to
lay (a blow) on: cause (something damaging or painful) to be endured:
impose.’ [Citation.] . . . [¶] The term ‘personally,’ which modifies ‘inflicts’ . . .,
refers to an act performed ‘in person,’ and involving ‘the actual or immediate
presence or action of the individual person himself (as opposed to a substitute,
deputy, messenger, etc.).’ ” (Italics added.) The trial judge had no duty to
define the phrase further in this case.
We see no reasonable likelihood the jurors would have misunderstood
the instruction as allowing them to find the enhancement true so long as
Wilson proximately caused great bodily injury, as Wilson now suggests. The
court’s instruction on proximate cause for establishing the substantive
count 3 violation, viewed in the context of the whole charge to the jury, would
not have confused the jurors or tainted the clarity of the court’s “personally
inflicted” instruction on great bodily injury for the charged enhancements.
36
Third, even if we assume trial court error, the instructional omission
was harmless under any standard. (Chapman, supra, 386 U.S. at p. 24;
People v. Watson, supra, 46 Cal.2d at p. 836.) There was no evidence
suggesting that any person or force other than Wilson played a role in
causing the collision that killed Vincent and Lorenzo and gravely injured
Luciano and Aida Reyes. Even if the jurors had been given a fuller definition
of “personally inflicts” under the statute, it is clear beyond a reasonable doubt
they would not have reached verdicts more favorable to Wilson on the great
bodily injury enhancements. (Chapman, at p. 24.)
G. The Great Bodily Injury Findings Under Penal Code Section
12022.7, Subdivision (a) Are Supported by Substantial Evidence
Wilson argues that both count 3 true findings on enhancements under
Penal Code section 12022.7, subdivision (a) relating to Luciano and Aida
Reyes should be reversed because “there is no evidence and/or substantial
evidence that Wilson personally inflicted great bodily injury within the
meaning of the statute and case law.” In conclusory fashion, Wilson asserts,
“The evidence is sufficient to establish that Wilson’s act of driving
proximately caused great bodily injury and death, but there is no evidence or
substantial evidence that he personally inflicted great bodily injury or death,
i.e.[,] he ‘himself inflict[ed] the injury,’ ‘direct from one person to another.’ ”
To the extent he implies the enhancement statute requires some greater
degree of person-to-person or skin-to-skin contact or some greater degree of
willful contact than shown by the evidence in this case, we reject his
suggestion. (See Cross, supra, 45 Cal.4th at p. 66, fn. 3 [“To the extent
defendant argues that great bodily injury invariably requires the application
of physical force to the victim in order to cause great bodily injury, we reject
that view”]; People v. Guzman (2000) 77 Cal.App.4th 761, 764 [defendant
37
personally inflicted injury by turning his vehicle into oncoming traffic and
causing collision].)
Wilson’s analysis fails to persuade us because the great bodily injury
enhancements are supported by overwhelming evidence of serious and deadly
injuries, and Wilson’s conduct meets the “personally inflicts” requirement.
The evidence shows the injuries were inflicted by Wilson’s conduct alone.
This counts as substantial evidence of personal infliction even though
vehicles were involved. (See People v. Guzman, supra, 77 Cal.App.4th at
p. 764.)
H. No Substantial Evidence Supports the Jury’s True Findings
Under Penal Code Section 12022.7, Subdivision (b) that Lorenzo
and Vincent Were Rendered “Comatose Due to Brain Injury”
Before They Died
Unlike their findings on the allegations under Penal Code section
12022.7, subdivision (a), the jury’s true findings on the two enhancements
alleged under subdivision (b) of the same statute, namely that Wilson had
inflicted injuries rendering Lorenzo and Vincent “comatose due to brain
injury,” were unsupported by substantial evidence. No one testified that
Lorenzo and Vincent were “comatose” before they died, and the expert
witness did not opine as to how long they survived their injuries, except that
both expired rapidly. Most of the first witnesses to appear on the scene
believed the two older boys were dead even when they first arrived, although
one Kinder’s employee thought Vincent was still alive. The CHP and EMT
personnel extended no CPR efforts for Lorenzo and worked on Vincent only
for “a few seconds” according to an onlooker.
Since the statute does not define “comatose,” the word conveys “the
meaning it bears in ordinary usage,” that is, in a state “characterized by
profound unconsciousness.” (People v. Cunningham (2016) 244 Cal.App.4th
1049, 1054.) Although the word “comatose” does not imply the victim must
38
be in a permanent unconscious state, something more than a fleeting and
unsubstantiated state is anticipated. There must be evidence showing the
victim was comatose at some point in time. (Id. at pp. 1053–1054.)
The Attorney General concedes “no significant evidence” supports the
jury’s findings but argues we should reduce the (b) enhancements to
(a) enhancements, which carry a three-year term, stayed under Penal Code
section 654. We decline to take that approach and shall strike the
enhancements imposed under Penal Code section 12022.7, subdivision (b),
and the sentences imposed thereon (five years each, stayed under Pen. Code,
§ 654).
I. Penal Code Section 654 Does Not Bar Separate Punishment for
Fleeing the Scene of an Accident
Wilson contends Penal Code section 654, subdivision (a) prohibited the
trial court from imposing sentence both on the murders and the DUI with
injury on the one hand, and on the fleeing statute on the other. His theory is
essentially that one who commits a serious crime will naturally try to escape
punishment and therefore cannot be punished separately for fleeing the scene
of the crime.
Penal Code section 654, it is true, bars multiple punishment for
“a course of conduct” reflecting a single “intent and objective.” (People v.
Corpening (2016) 2 Cal.5th 307, 311–312 (Corpening).) “Only if we conclude
that the case involves more than a single act—i.e., a course of conduct—do we
then consider whether that course of conduct reflects a single ‘ “intent and
objective” ’ or multiple intents and objectives.” (Corpening, at p. 311.)
Whether the defendant entertained a single or multiple criminal objectives is
determined from all the circumstances and is primarily a question of fact for
the trial court, whose finding will be upheld on appeal if any substantial
evidence supports it. (People v. DeVaughn (2014) 227 Cal.App.4th 1092,
39
1113; People v. Butler (1986) 184 Cal.App.3d 469, 473 (Butler).) Moreover,
the trial court’s finding may be either express or implied. (People v. McCoy
(1992) 9 Cal.App.4th 1578, 1585.) But when the question arises on
undisputed facts, as it does here, application of Penal Code section 654 is an
issue of law which we review de novo. (Corpening, at p. 312.)
Wilson fails to convince us the collision and his flight occurred as a
course of conduct incident to a single intent and objective. On the contrary,
the mental state required for the murders (conscious disregard of risk to
human life) and the conduct required for the DUI offense in count 3 (driving
while intoxicated) were separate and distinct from the decision to try to
escape, formed after the collision, which involved a wholly separate act,
inferably for the separate purpose of concealing evidence of Wilson’s
drunkenness and minimizing his punishment. (See Butler, supra,
184 Cal.App.3d at p. 474.)
In Butler, a case much like this one, the defendant was convicted of
vehicular manslaughter (Pen. Code, former § 192, subd. (c)(3)) and felony
hit-and-run (Veh. Code, former § 20001). After speeding and running a stop
sign and causing a fatal accident, Butler was found by an acquaintance
wandering dazed near the accident. (Butler, supra, 184 Cal.App.3d at
p. 471.) He prevailed upon the acquaintance to take him home. His BAC was
not tested until three and one-half hours later when a relative took him to
the hospital for treatment. At that point his BAC was still .13 percent.
(Ibid.)
Butler, like Wilson, argued on appeal that Penal Code section 654
prohibited his being sentenced on both vehicular manslaughter and
hit-and-run (Veh. Code, former § 20001). (Butler, supra, 184 Cal.App.3d at
pp. 471–472.) The Court of Appeal rejected his argument, holding that
40
leaving the scene of the accident he had caused and the accident itself
involved “two separate states of mind” and a “divisible course of conduct.”
(Id. at p. 473.) His decision to flee arose from an objective to conceal his
identity and his state of inebriation. (Id. at p. 474.) The same is true here.
Wilson calls Butler “flat-out wrong.” We disagree. Wilson’s act of
drunk and reckless driving was separate and distinct from his act of running
away on foot to avoid apprehension. Hence, this is a “two-act case,” with
separate intents and objectives, subject to dual punishment under Penal
Code section 654. (See People v. Jones (2012) 54 Cal.4th 350, 358 [criticizing
Butler for its reliance on In re Hayes (1969) 70 Cal.2d 604, a one-act case
overruled in Jones, but approving of the result in Butler].)
The trial judge’s implied finding of separate and distinct objectives is
consistent with Butler and is supported by substantial evidence, including
Wilson’s statement moments after the collision, “I got to get out of here,” and
his overnight disappearance. The trial judge implicitly found that Wilson
entertained a separate intent and purpose for his flight, a finding
well-supported in the record. We further conclude, as a matter of law, the
judge correctly punished the two crimes separately, employing de novo review
to what are essentially undisputed facts. (Corpening, supra, 2 Cal.5th at
p. 312.)
After the deadly crash, Wilson not only abandoned Reyes and her
children in a moment of urgent need and unimaginable grief, but he did so to
conceal evidence and reduce his own exposure to punishment. He was justly
punished for two separate crimes.
III. DISPOSITION
Based on insufficiency of the evidence, the judgment is modified by
reversing the jury’s true findings on the two enhancements to count 3 alleged
41
under Penal Code section 12022.7, subdivision (b), and striking the
enhancements and sentences imposed thereon (five years, stayed under
Pen. Code, § 654). In all other respects the judgment is affirmed. The
superior court shall prepare an amended abstract of judgment and shall
forward certified copies to the Department of Corrections and Rehabilitation,
the Department of Motor Vehicles, and appellate counsel.
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_________________________
Streeter, J.
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Desautels, J.*
People v. Wilson A157485
*Judge of the Alameda County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
43