P. v. Hernandez

Filed 8/28/08 P. v. Hernandez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Anna Maria Hernandez appeals her convictions for second degree murder and gross vehicular manslaughter while intoxicated. While under the influence of alcohol, Hernandez drove the wrong way on the 14 Freeway at approximately 3:00 a.m., striking another car and killing the driver, Emma Smolinsky. Hernandez was sentenced to a term of 15 years to life in prison.

Hernandez contends: (1) the evidence was insufficient to support her conviction for second degree murder; (2) her trial counsel was ineffective in a variety of respects; (3) the prosecutor committed misconduct; and (4) instruction with CALCRIM No. 226 was constitutional error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples evidence.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On December 2, 2004, Hernandez drove her silver Honda Passport to the El Dorado Restaurant in Palmdale, where she worked as a waitress, to pick up her paycheck. While at the bar, she consumed alcoholic beverages, including three Crown Royals and cokes. She left the bar in the early morning hours of December 3, intending to drive to her mothers house in Sherman Oaks. She initially drove southbound on the 14 Freeway, but decided it was too late to visit her mother. She exited and then reentered the freeway, driving at approximately 60 to 65 miles per hour. Hernandez believed she was traveling in the northbound lanes. In fact, she was traveling north in the southbound lanes. Signage at the relevant on and off ramps warned drivers not to enter the wrong way.

As Hernandez traveled northbound at approximately 55 miles per hour in the southbound median, she narrowly missed hitting a Toyota Tundra in the fast lane; the two vehicles came within two feet of each other. Just past a curve in the freeway

approximately one mile north of the Pearblossom Highway on-ramp, Hernandezs Passport collided with 66-year-old Emma Smolinskys Nissan Sentra in a partial head-on collision, causing the Sentra to spin and stop in the slow lane and the Passport to come to rest in the center divider. Jose Hernandez,[1]who was driving his Honda Civic southbound on the freeway, saw the Sentra blocking his lane and veered left; however his front fender clipped the Sentra, causing his vehicle to spin out of control and stop. Despite the attempts of Jose and another driver to alert oncoming traffic, truck driver Donald Bowser rounded the curve and was unable to avoid hitting Joses vehicle. Bowsers truck went out of control, careened off the center divider, crossed back across the freeway, and came to rest against the guardrail. Joses Civic also spun into the rail. Smolinskys Sentra remained stopped in the slow lane. Most of the damage to Smolinskys vehicle was caused by the collision with appellants vehicle.

Emergency vehicles, and Highway Patrol officers Jeremy Linson and Jason Wilber, arrived within minutes. Smolinsky was transported to a hospital by helicopter with extremely serious injuries including several pelvic fractures, a compound fracture and shattering of her leg bones, fractures of her ribs which cut blood vessels, and a fracture of her vertebra. Smolinsky died of her injuries during surgery, while doctors were preparing to amputate her leg.

When Officer Linson contacted Hernandez at the scene, he detected a strong odor of alcohol inside her car. Hernandez admitted consuming two beers. She was taken to the hospital. Linson spoke to her again in the emergency room. Her speech was unintelligible and slurred, and her eyes were red and watery. She was distraught and screaming. Linson conducted several sobriety tests in the hospital room, including a Preliminary Alcohol Screening test (P.A.S.) at 5:42 a.m. Hernandezs blood was drawn

at 5:58 a.m., and testing indicated a blood alcohol concentration of .21 percent. Persons with blood alcohol concentrations of .05 are impaired to drive safely.

When Linson interviewed her at the hospital three days later, Hernandez did not appear to be aware she had been traveling the wrong way on the freeway. She stated that a vehicle next to her made an unsafe lane chance, and she tried to slam on her brakes. However, they did not seem to work.

Based upon the evidence, Officer Linson testified that Hernandez had been operating a motor vehicle while under the influence of alcohol at the time of the collision.

In 2003, Hernandez had pleaded no contest to driving under the influence (Veh. Code, 23152, subd. (b)). She was placed on three years probation and required to complete an alcohol education program and attend a victim impact panel program. In conjunction with her employment, she had also received informal training regarding serving alcoholic beverages and how to determine whether a customer was impaired.

b. Defense evidence.

A forensic pathologist testified that Smolinskys surgery was delayed as a result of her unwillingness or inability to consent to amputation of her leg, and the delay could have contributed to her death. The testimony of an accident reconstruction expert and a physician suggested that the collision between appellants and Smolinskys vehicles was more likely a sideswipe than a head-on collision. It appeared Hernandez hit her brakes sooner than Smolinsky did. Photographs taken two months after the accident revealed that a sign warning Do Not Enter and Wrong Way near the relevant section of the freeway was on the ground. According to a defense investigator, it appeared to be fairly easy to make a left turn onto the exit ramp rather than the entry ramp at the spot where Hernandez presumably entered the southbound 14 Freeway.

Hernandez testified in her own behalf, confirming that she drank before driving at the bar, started out for her mothers house, changed her mind, and exited the freeway. She headed south on the 14 Freeway. She reentered the freeway on what she believed was the northbound side. She did not see any One Way or Do Not Enter signs. She traveled on the dark freeway for a minute or two in what she believed was the slow lane. When lights appeared in front of her she unsuccessfully attempted to brake and avoid the other vehicle.

2. Procedure.

Trial was by jury. Hernandez was convicted of second degree murder (Pen. Code,  187, subd. (a))[2]and gross vehicular manslaughter while intoxicated ( 191.5, subd. (a)). The trial court sentenced Hernandez to a term of 15 years to life in prison. It also imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. Hernandez appeals.

DISCUSSION

1. The evidence was sufficient to support the second degree murder conviction.

Hernandez contends the evidence was insufficient to support a finding of implied malice, a prerequisite to second degree murder under the facts presented here. She urges that the evidence did not support a finding she actually knew her conduct involved a high risk of death to another, or that she acted deliberately and with conscious disregard for life. We disagree.

When determining whether the evidence was sufficient to sustain a conviction, our role on appeal is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) [T]he test of whether evidence is sufficient to support a conviction 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 reasonable doubt. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 667.) We draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

In People v. Watson [(1981)] 30 Cal.3d 290, the Supreme Court held that in appropriate circumstances a homicide caused by a drunk driver may be prosecuted as second degree murder. Second degree murder based on implied malice is shown when the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. [Citation.] Implied malice requires that the accused actually appreciated the risk involved. [Citation.] [] Since Watson, numerous cases have upheld drunk driving murder convictions. (People v. Olivas (1985) 172 Cal.App.3d 984; People v. Albright (1985) 173 Cal.App.3d 883; People v. McCarnes (1986) 179 Cal.App.3d 525; People v. Brogna (1988) 202 Cal.App.3d 700; People v. Murray (1990) 225 Cal.App.3d 734; People v. David (1991) 230 Cal.App.3d 1109.) As . . . summarized in People v. Talamantes (1992) 11 Cal.App.4th 968, 973, these cases have relied on some or all of the following factors in upholding such convictions: (1) 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.)

As in Talamantes and Autry, strong evidence of all four factors is present here. First, Hernandez was found to be driving with a blood alcohol level of .21 percent the equivalent of six 12-ounce beers an amount substantially above the .08 legal limit.

Second, the evidence showed Hernandez had a predrinking intent to drive. She drove her vehicle to the El Dorado Restaurant and Bar, where she worked, to pick up her paycheck. She consumed the alcohol at the bar, and then decided to visit her mother in Sherman Oaks. Because she drove her vehicle to the bar and no evidence indicated she had arranged for an alternative way home, the jury could reasonably infer she had a predrinking intent to drive. (See People v. Talamantes (1992) 11 Cal.App.4th 968, 973 [Since appellant was driving alone at 4 a.m., it [was] a reasonable inference that when

he left wherever he had been drinking, his car was available and he had intended to drive it]; People v. Watson (1981)30 Cal.3d 290, 300 [the defendant had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later].)

Third, there was ample evidence Hernandez was aware of the dangers of driving while intoxicated. She had a prior conviction for driving while under the influence. As part of her probation in that case, she was required to, and did, complete a three-month first offender alcohol and drug education program. A form she filled out in conjunction with that program indicated she understood that if she drank and drove again, and had an accident or killed someone, she might be tried for murder. She also attended a victim impact program operated by Mothers Against Drunk Driving (M.A.D.D.), in which a speaker described how her nephew was killed by a drunk driver. As part of that program, Hernandez was given information about the consequences of driving under the influence, including statistics on how many people are killed in drunk driving crashes each year. The brochure stated that driving under the influence is a crime that can kill innocent victims. Further, in connection with her employment at the El Dorado Restaurant, Hernandez was directed not to serve alcohol to patrons who were intoxicated. She was informed regarding how to recognize signs of intoxication, such as vision and speech impairment, and was also informed of the restaurants liability for serving alcohol to such persons. From this evidence, the jury could readily conclude Hernandez was subjectively well aware of the dangers of drinking and driving. (See generally People v. Autry, supra, 37 Cal.App.4th at pp. 358-359.) Moreover, as explained 20 years ago in People v. Brogna (1988) 202 Cal.App.3d 700, 709, One who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others. . . . [D]riving under the influence constitutes a criminal offense precisely because it involves an act which is inherently dangerous. [Citation.] That simple fact has been made well

known to all segments of our society through virtually every form of mass media. Considering todays heightened level of public awareness, we cannot believe that any person of average intelligence who has suffered a drunk driving conviction would be oblivious to the risks caused by driving while intoxicated.

Fourth, Hernandezs driving was highly dangerous. She drove on the wrong side of a major freeway, at approximately 55 miles per hour, at approximately 3:00 a.m., when it was dark. Common sense teaches that driving the wrong direction, at a high rate of speed, on a major freeway, at night, ranks as one of the most dangerous driving activities imaginable.

In short, the evidence was more than sufficient. (See People v. Talamantes, supra, 11 Cal.App.4th at pp. 972-973.) 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. Watson, supra, 30 Cal.3d at pp. 300-301.)

Hernandez attempts to avoid this result by urging that the evidence was insufficient to show she was actually aware that her conduct posed a risk of death to another. She complains that there was no evidence anyone saw her weaving, speeding, or meandering about the freeway and that she was traveling at what would have been a safe speed had she been on the correct side of the freeway. This argument is unpersuasive. The fact remains that she was not traveling on the correct side of the freeway. She was traveling against traffic an error that the jury could reasonably infer she would not have made absent her intoxication. Common experience dictates that driving on the wrong side of the freeway is not a mistake commonly made by sober drivers. The evidence was more than sufficient.

2. Hernandez has failed to establish ineffective assistance of counsel.

Hernandez contends her counsel was ineffective for failing to move to strike Officer Linsons testimony regarding the results of the P.A.S, and by failing to object to purportedly inadmissible opinion testimony.

a. Applicable legal principles.

A meritorious claim of constitutionally ineffective assistance must establish both: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. (People v. Holt, supra, 15 Cal.4th at p. 703; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Carter (2003) 30 Cal.4th 1166, 1211.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin, supra, 18 Cal.4th at p. 333.) Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citations.] (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Lopez, supra, at p. 966.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] (People v. Carter, supra, at p. 1211; People v. Jones, supra, at p. 1254.) Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.)

b. Failure to move to strike Officer Linsons testimony regarding the P.A.S. test.

(i) Additional facts.

As set forth ante, Officer Linson visited Hernandez while she was being treated in the emergency room. He conducted a Preliminary Alcohol Screening test (P.A.S.) at approximately 5:42 a.m. The test involved use of a hand-held breathtesting device, used to determine the presence or concentration of alcohol in a persons blood. (People v. Bury (1996) 41 Cal.App.4th 1194, 1198.) Linson explained to Hernandez what the P.A.S. test was and gave her the choice whether or not to take it. Hernandez was unable to seal her lips around the intake tube and would not follow instructions. Linson pressed a manual button on the device, designed for this type of circumstance. As Linson explained, If someone is not providing an ample sample, we can press the manual button, and it will read the amount of air that has gone through the test so far. Using this approach, Linson obtained two readings, taken two minutes apart, showing blood alcohol levels of .20 and .18. Linson, concluding Hernandez was under the influence of alcohol, placed her under arrest. Hernandezs blood was drawn at the hospital at 5:58 a.m. The blood test showed a concentration of .21 percent alcohol.

Prior to trial, Hernandez moved to suppress the results of the P.A.S. test on the grounds that she was not given the statutorily required advisement that she had a right to refuse the test. The trial court denied the motion.

(ii) Discussion.

Californias implied consent law, Vehicle Code section 23612, subdivision (a)(1)(A) provides, A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. The statute further provides, in regard to P.A.S. tests: (h)  A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool. [] (i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The persons obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that persons blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person's right to refuse to take the preliminary alcohol screening test. (Italics added.)

The record does not establish counsel performed below an objectively reasonable standard. As we explain post, the evidence was properly admitted, and an objection or motion to strike would have been unsuccessful. Indeed, counsel had already moved to suppress the evidence before trial, and the motion was denied. Defense counsel is not required to make futile motions or to indulge in idle acts to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)

Evidence of the P.A.S. results was properly admitted for several reasons. Preliminarily, we observe that Hernandezs motion failed to establish that Linson actually failed to give her the admonishment required by Vehicle Code section 23612. Hernandezs motion relied upon the following testimony given by Linson at the preliminary hearing:

[Prosecutor]: Did you use the preliminary alcohol screening device on the defendant?

[Linson]: Yes, I did.

[Prosecutor]: Tell us about that, please.

[Linson]: I explained to her what I was going to do, that I was going to administer the preliminary alcohol screening test, and I explained exactly what I was gong to do. I put the tube by her mouth, and I said, Okay. Now seal your mouth around the tube and blow real hard until I tell you to stop.

Based on this testimony, Hernandez contended in her suppression motion that Linson had failed to give the required advisement. The trial court denied the suppression motion on the ground that Hernandez had no right to refuse the test. It noted that perhaps statutorily, not all of the requirements had been met based on the officers testimony and what I heard, but that fact went only to the weight of the evidence as opposed to admissibility.

At the preliminary hearing, however, Linson was asked a general question about his use of the P.A.S. test; he was never asked whether he had given the statutory advisement. Fairly read, the record fails to provide substantial evidence that the advisement was omitted. Indeed, at trial Linson testified that he had given the P.A.S. admonition, which he described as something that we tell someone, so they know why what it is and what we plan on doing with it, and give them the choice whether or not they want to take it or not. Therefore, because there was an inadequate factual basis for the suppression motion, the trial courts denial of the motion was correct. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. [Citations.] (People v. Brown (2004) 33 Cal.4th 892, 901.)

Even assuming arguendo the suppression motion sufficiently established that the statutorily required advisement was not given, suppression was not required. Nothing in the statute requires exclusion of the P.A.S. results if the officer fails to advisethat the defendant may refuse the test, and Hernandez cites no authority for the proposition. Exclusion of evidence is an extreme sanction (People v. Amador (2000) 24 Cal.4th 387, 397), and is not to be employed lightly. After the passage of Proposition 8, our state Constitution forbids exclusion of evidence as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution. (People v. McKay (2002) 27 Cal.4th 601, 608; People v. Camacho (2000) 23 Cal.4th 824, 830.)

Here, Hernandez fails to persuade us that failure to give the advisement infringed on any constitutionally protected right. She argues that Linsons failure to provide [the] advisement was tantamount to a failure to advise her against her Fifth Amendment right against self-incrimination since the very purpose of such testing is to provide reasonable cause to place the defendant under arrest for a criminal law violation and use those results as proof of guilt at trial. According to Hernandez, just as the failure to administer Miranda[3]warnings may result in the suppression of evidence, so too should the failure to give the statutory advisement.

This analogy is inapt. [T]he Fifth Amendment, at bottom, protects against compelled testimonial self-incrimination. Miranda and its progeny are designed to allow full understanding and exercise of this constitutional right in the inherently custodial atmosphere of police custody. (People v. Storm (2002) 28 Cal.4th 1007, 1029.) It is well settled that there is no Fifth Amendment right to refuse to take a blood or breath test. (Schmerber v. California (1966) 384 U.S. 757, 765.) In Schmerber, the high court recognized that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. (Id. at p. 761.) This procedure, however, did not compel the defendant to be a witness against himself, and therefore did not impact the Fifth Amendment. As Schmerber explained, the privilege against self-incrimination reaches only an accuseds communications. (Id. at p. 764.) [B]oth federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling communications or testimony, but that compulsion which makes a suspect or accused the source of real or physical evidence does not violate it. (Id. at p. 764, fn. omitted.) Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioners testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. (Id. at p. 765.) Likewise, no testimonial compulsion was at issue here, and there is no constitutional basis for excluding the results of the P.A.S. test.[4]

Hernandezs argument that the foundational requirements for admission of the P.A.S. test were not met fares no better. To properly contest the foundational requirements for the admission of the PAS evidence, appellant should have questioned whether the testing apparatus was in working order, whether the test was properly administered, and whether the operator was competent and qualified. (People v. Bury, supra, 41 Cal.App.4th at p. 1202.) Here, Hernandez challenges only the second factor, whether the test was properly administered. She contends that because she was unable to seal her lips around the P.A.S. device, the results were invalid.

She is incorrect. Officer Linson had administered P.A.S. tests over 700 times. He testified that the device had a manual button, designed for just such a circumstance. As Linson explained, If someone is not providing an ample sample, we can press the manual button, and it will read the amount of air that has gone through the test so far. Using the manual button, Linson obtained two readings. Contrary to Hernandezs argument, Officer Russell Moore, who testified as an expert for the People regarding the P.A.S. device, did not testify that Hernandezs inability to form a tight seal around the tube rendered the test results invalid. Instead, Moore testified that if there was insufficient seal or air blown into the tube, the device would not render a reading. Moore testified that for the P.A.S. device to work properly, [i]t has to have a volume of air blown into the machine for it to work. So if there is not a volume of air blown into the machine with a tight seal around the tube itself, the machine will stop working. It will

say low blow, or no blow, or invalid. Moore confirmed that the device was equipped with a manual button, and explained that the button could be used when a subject was too intoxicated to blow the correct amount of air into the tube. According to Moore, even using the manual button, the subject had to seal their lips around the tube, but if the required amount of seal was not present, the machine would not render a reading, i.e., nothing will happen.

Because Linson was able to obtain two readings, the testimony of the two officers suggested that, while Hernandez was unable to form a sufficient seal to allow the device to operate in the automatic mode, she must have been able to form a seal for a short time, sufficient to allow the device to function in the manual mode. Otherwise a reading could not have been obtained. Accordingly, counsel could reasonably have concluded that an objection to admission of the evidence on foundational grounds would have been futile.[5]

In any event, even assuming the results of the P.A.S. test should have been excluded on either cited ground, Hernandez has failed to establish prejudice. (See People v. Holt, supra, 15 Cal.4th at p. 703 [to establish the second prong of an ineffective assistance claim, the defendant must show a reasonable probability that absent counsels errors, a result more favorable to her would have resulted]; Evid. Code, 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Marks (2003) 31 Cal.4th 197, 226-227.)

No such reasonable probability exists here. Linson had been trained to evaluate motorists for driving under the influence of alcohol, and had even trained other officers on how to detect intoxicated drivers. He had arrested over 500 persons for driving under the influence. He was, therefore, well qualified to determine whether a driver was intoxicated. As he approached Hernandezs vehicle at the accident scene, he immediately smelled the strong odor of an alcoholic beverage emitting from the vehicle. After Hernandez was taken to the hospital, Linson spoke to her in her hospital room, where she was the only patient. When he entered the room, The smell of alcohol was so strong it smelled up the entire room. Hernandezs speech was extremely slurred,[6]and her eyes were red and watery. She later admitted having three alcoholic drinks prior to driving. Linson formed the opinion Hernandez was under the influence at the time of the accident due to the totality of everything, the fact that she was driving the wrong way on the freeway, her admission to drinking alcohol, the signs and symptoms of alcohol intoxication, her slurred speech, her watery eyes, and the real strong odor of an alcoholic beverage around her area, around her person and her breath. Most significantly, a blood test drawn within minutes of the P.A.S. reading showed a .21 percent concentration of alcohol, far above the legal limit. Given this evidence, there is no likelihood the jury would have rendered a more favorable result for Hernandez had the P.A.S. test results been excluded.

c. Failure to object to criminalists testimony.

As noted, Hernandezs blood was drawn at the hospital and later tested, revealing a .21 percent concentration of alcohol. Senior Criminalist Jasmine Jefferson, who had tested the sample, testified without objection that all persons with a blood alcohol level of .05 grams of ethanol per 100 milliliters of blood are impaired to drive safely. Hernandez contends Jefferson was not properly qualified as an expert witness on the topic, and as a lay witness she was not permitted to offer a lay opinion on the matter. Hernandez points out that Vehicle Code section 23610, subdivision (a)(2) provides that when the defendant has a blood alcohol reading of between .05 and .08, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage . . . . Further, Hernandez contends Jeffersons testimony was tantamount to a legal conclusion that Hernandez subjectively knew her actions were dangerous to human life.

We reject these contentions. Jefferson had a Bachelor of Sciences degree in Biological Sciences from the University of California, Irvine, and a masters degree in Criminalistics from the California State University, Los Angeles. She had completed an in-house training program on blood and urine analysis, as well as passed a California proficiency examination entitling her to the title of Forensic Alcohol Supervisor. She had completed numerous training courses dedicated to alcohol-related topics. She testified she was familiar with the effect of alcohol on safe driving through her training and experience. She had also attended and been a part of studies correlating consumption of alcohol or alcohol concentrations in a persons blood or urine to a driving-related task or actual driving situation.

Hernandez does not persuasively explain why Jeffersons credentials were insufficient to qualify her as an expert on the challenged testimony. In any event, the record does not reveal the absence of a tactical basis for counsels failure to challenge the testimony on lack of foundation grounds. Counsel, for example, might have believed further development of the basis for Jeffersons expertise was possible and would only have served to strengthen her testimony, or that, if his objection was sustained, the People could readily bring in the evidence through another witness.

Hernandezs argument that the testimony was tantamount to an opinion that she was guilty is equally unpersuasive. It is of course correct that neither an expert nor a lay witness may opine about a defendants guilt or innocence, or whether a crime has been committed. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77; People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) On the other hand, an experts testimony is not objectionable merely because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, 805.) Jeffersons testimony did not violate these principles. Jefferson did not, either explicitly or implicitly, testify that she believed Hernandez was guilty, that Hernandez had the requisite knowledge, or that Hernandez acted with conscious disregard. Jeffersons testimony regarding persons driving with a blood alcohol level of over .05 did nothing to suggest Hernandez subjectively knew her actions were dangerous. Counsel therefore did not perform inadequately by failing to object, in that any objection on this ground would have been overruled. (See People v. Torrez, supra, 31 Cal.App.4th at p. 1091.)[7]

4. The prosecutor did not commit prejudicial misconduct.

During closing argument, the prosecutor argued that Hernandezs testimony was not sincere, that the defense had attempted to paint Hernandez as the victim, and that Hernandez was attempting to cast blame for her conduct on others. The prosecutor recounted the injuries Smolinsky had suffered. She then argued, And what about the family? [Smolinsky] has four children, nine grandchildren, one great grandchild. They have been robbed of their loved one. How many birthdays, graduations, special events, holidays has she missed because of the defendant? (Italics added.)

Hernandez argues that the italicized comments above constituted an improper appeal to the jurys passions and sympathies, requiring reversal. We disagree that reversal is required. Under California law, a prosecutor commits reversible misconduct if he or she makes use of deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendants specific constitutional rights such as a comment upon the defendants invocation of the right to remain silent but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action so infected the trial with unfairness as to make the resulting conviction a denial of due process.  [Citations.] (People v. Rundle (2008) 43 Cal.4th 76, 157; People v. Lopez (2008) 42 Cal.4th 960, 965-966; People v. Roldan (2005) 35 Cal.4th 646, 719.)

Hernandez acknowledges that her trial counsel failed to object to the challenged comments, and therefore the claim has been forfeited. (People v. Rundle, supra, 43 Cal.4th at p. 157 [a defendant may not complain on appeal of prosecutorial misconduct unless he or she made a timely and specific objection and requested the jury be admonished to disregard the impropriety].) Because Hernandez contends her counsel performed inadequately by failing to object, however, we consider her claim.

It is improper for a prosecutor to appeal to the sympathy or passions of the jury at the guilt phase of a criminal trial. (People v. Fields (1983) 35 Cal.3d 329, 362.) However, assuming without deciding that the prosecutors comments were improper, Hernandez has not established either ineffective assistance or prosecutorial misconduct. Defense counsel could have made a tactical decision not to object to the challenged argument, believing it was insignificant and not wishing to highlight the fact of Smolinskys familys loss. There is no probability the jurors applied the challenged remarks in an objectionable fashion, nor is there any probability a more favorable result would have resulted had the comments been omitted. As the People point out, the jury already knew, from evidence presented during trial, that Smolinsky had a family. The prosecutor did not ask jurors to think of the victim as one of their loved ones. The argument was brief, mild, and isolated. Given the nature of the evidence against her, Hernandez fails to persuasively demonstrate how the challenge remarks were prejudicial. (See People v. Williams (1997) 16 Cal.4th 153, 256; People v. Pensinger (1991) 52 Cal.3d 1210, 1250-1251.)

5. Instruction with CALCRIM No. 226 was not error.

Without objection, the trial court instructed the jury with CALCRIM No. 226.[8] That instruction advises the jury of various factors to consider when evaluating testimony. Hernandezs challenge is to two words in the last paragraph of the instruction (italicized below): If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest. Hernandez posits that use of the word should as opposed to may created a pernicious permissive inference and lightened the prosecutions burden of proof. The word ignore, Hernandez urges, short-circuits the jurys process of contrasting and comparing evidence so as to allow an early discard of some portions of the evidence. We disagree.

When reviewing a purportedly erroneous jury instruction, we ask whether there is a reasonable likelihood the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028; People v. Harrison (2005) 35 Cal.4th 208, 252; People v. Crew (2003) 31 Cal.4th 822, 848; People v. Smithey (1999) 20 Cal.4th 936, 963.) In conducting this inquiry, we are mindful that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. [Citations.] [Citation.] Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.] People v. Richardson, supra, at p. 1028; People v. Holt, supra, 15 Cal.4th at p. 677.)

The People argue that Hernandez has forfeited the issue on appeal because she did not object to the instruction below. However, [f]ailure to object to instructional error forfeits the issue on appeal unless the error affects defendants substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.] (People v. Anderson (2007) 152 Cal.App.4th 919, 927; 1259.) Because Hernandezs contention is that the instruction

was incorrect and violated her substantial rights, we address her argument to determine whether there has been a miscarriage of justice. (People v. Anderson, supra, at p. 927.)

Our Supreme Court has repeatedly upheld challenges to a similar instruction, CALJIC No. 2.21.2. That instruction provides, A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars. The first sentence, the court has repeatedly held, does not shift or lessen the Peoples burden of proof. The instruction at no point requires the jury to reject any testimony; it simply states circumstances under which it may do so. (People v. Beardslee (1991) 53 Cal.3d 68, 95; People v. Crew, supra, 31 Cal.4th at p. 848.) CALJIC No. 2.21.2 allows the jury to reject the testimony of a witness who is willfully false in one material part of his or her testimony. That does not, however, lower the beyond-a-reasonable-doubt burden of proof. (People v. Carey (2007) 41 Cal.4th 109, 130-131; see also People v. Maury (2003) 30 Cal.4th 342, 428-429; People v. Millwee (1998) 18 Cal.4th 96, 158-161.)

Like CALJIC No. 2.21.2, CALCRIM No. 226 is a facially neutral instruction that applies to all witnesses who testify at trial. The instruction does not focus on the defense witnesses testimony more than on that of other witnesses. Nor does the instruction tell jurors they must reject any testimony. To the contrary, much of the instruction suggests that the jury may accept portions of a witnesss testimony, even if it disbelieves other portions.

A comparison of the two instructions reveals no flaw in CALCRIM No. 226. CALCRIM No. 226 tells jurors they should consider disbelieving the testimony of a witness who has deliberately lied about something significant in the case. Like CALJIC No. 2.21.2, the instruction does not state that jurors must, or should, disbelieve the testimony. Indeed, the analogous statement in CALJIC No. 2.21.2 that [a] witness,

who is willfully false in one material part of his or her testimony, is to be distrusted in others, is considerably stronger than the language used in CALCRIM No. 226. (Italics added.) Similarly, CALJIC No. 2.21.2 tells jurors that they may reject the entire testimony of a witness who is willfully false. CALCRIM No. 226 tells jurors they may ignore testimony they believe is false. Both instructions tell jurors to disregard testimony they believe is false. We see no meaningful difference between telling jurors they may reject such testimony or ignore it. Contrary to Hernandezs suggestion, ignore does not give jurors leeway to avoid comparing and contrasting evidence. Jurors presumably must do so in order to determine whether a witness is truthful in the first instance. In short, both instructions tell the jury it may completely reject the testimony of a witness it believes has lied about a material matter, or instead may believe some portions of a witnesss testimony and disregard others. If CALJIC No. 2.21.2 passes constitutional muster, so must CALCRIM No. 226. The instruction did not lessen the Peoples burden of proof.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] For ease of reference, and with no disrespect, we hereinafter sometimes refer to Jose Hernandez by his first name.

[2] All further undesignated statutory references are to the Penal Code.

[3]Miranda v. Arizona(1966) 384 U.S. 436.

[4] We also observe that, as a condition of her probation, Hernandez was required not to refuse a chemical or breath test when requested by a police officer to take one. Thus, she can hardly complain about not receiving an admonition that was inapplicable to her in any event.

[5] Hernandez also briefly asserts that the trial court had a sua sponte duty to exclude the evidence. Contrary to her argument, a trial court has no sua sponte duty to exclude evidence. (People v. Medina (1995) 11 Cal.4th 694, 727; People v. Montiel (1993) 5 Cal.4th 877, 918.)

[6] Linson had investigated hundreds of accidents, and had never encountered anyone whose speech was slurred due to the accident itself.

[7] As we have already observed, a trial court has no sua sponte duty to exclude evidence (People v. Montiel, supra, 5 Cal.4th at p. 918), and Hernandezs contrary contention is not persuasive.

[8] As given here, CALCRIM No. 226 provided,

You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witnesss gender, race, religion, or national origin, or sexual orientation. You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe.
In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
How well could the witness see, hear, or otherwise perceive the things about which the witness has testified?
How well was the witness able to remember and describe what happened?
What was the witnesss behavior while testifying?
Did the witness understand the questions and answer them directly?
Was the witnesss testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?

What was the witnesss attitude about the case or about testifying?

Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?

How reasonable is the testimony when you consider all the other evidence in the case?

Did other evidence prove or disprove any fact about which the witness testified?

Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.

If you do not believe a witnesss testimony that he or she no longer remembers something, that testimony is inconsistent with the witnesss earlier statement on that subject.

If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.