Filed 10/8/26 P. v. Aguilar CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE
THE PEOPLE,
Plaintiff and Respondent,
A171060
v.
MAURICIO RAMIREZ AGUILAR, (Napa County
Super. Ct. No. 20CR002238)
Defendant and Appellant.
While driving under the influence of alcohol, defendant Mauricio
Ramirez Aguilar crashed into an SUV that had just entered the highway in
front of him. The collision killed the SUV’s driver, 87-year-old Constantine
Tsavalas. A jury convicted Aguilar of second degree implied malice murder
under People v. Watson (1981) 30 Cal.3d 290 (Watson) and gross vehicular
manslaughter while intoxicated, and the trial court sentenced him to
15 years to life in prison.
On appeal, Aguilar claims that insufficient evidence supports both
convictions. He also claims the trial court erred in instructing the jury on
causation; excluding evidence of Tsavalas’s poor driving, including the fact
that Tsavalas’s license was suspended; and admitting evidence of the facts
underlying his own prior convictions for driving under the influence (DUI).
Finally, Aguilar claims that his convictions must be reversed for cumulative
error. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Events Leading up to the Crash
The crash that killed Tsavalas occurred on Highway 29 at its
intersection with Hoffman Lane shortly after 3:00 p.m. on October 17, 2020.
The speed limit at that location is 60 miles per hour.
That day, 36-year-old Aguilar worked at his job at Upper Valley
Disposal and Recycling, clocking in at 6:20 a.m. and out at 2:08 p.m. He
spent the last few hours of his shift working outside in the compost fields. It
was a hot day, and a co-worker testified that Aguilar “slipped on the ground”
at one point and said he felt “dizzy.”
After work, Aguilar and the co-worker drove separately to a market
less than 10 minutes away. Aguilar purchased a 12-can pack of Modelo beer
for himself and apple juice for the co-worker, and the two hung out in the
market’s parking lot for about half an hour.
During this time, the co-worker saw Aguilar drink one of the beers.
Concerned that Aguilar might drink more, the co-worker offered him a ride.
Aguilar got “mad” at the co-worker and refused the ride. Aguilar then got in
his vehicle, a white Dodge Dakota pickup truck, and left to pick up his
daughters from school.
Tsavalas lived at the California Veterans Home in Yountville.
Tsavalas’s former brother-in-law, who also lived there, saw Tsavalas in the
Home’s parking lot around noon that day. Tsavalas was unsuccessfully
trying to install a new battery in his vehicle, a tan Nissan Pathfinder.
Eventually, Tsavalas decided he needed a different battery and indicated to
his former brother-in-law that he was going to drive to Napa to exchange it.
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B. The Crash
Another driver who witnessed the crash provided the primary
eyewitness testimony. The eyewitness testified that he was driving south on
Highway 29 toward Napa when he noticed a white pickup truck, Aguilar’s
Dakota, approaching quickly from behind. At that location, the southbound
direction has two lanes, and the pickup was in the fast lane. The Dakota’s
driver was “kind of like tailgating a little bit” and “being aggressive,”
prompting several other vehicles to move into the slow lane so the pickup
could pass.
The eyewitness, who estimated he was going about 67 miles per hour,
moved into the slow lane. He then saw a dark-colored truck right in front of
the Dakota in the fast lane. The Dakota was traveling “really fast,” and it
braked so hard that it “dip[ped] and smoke c[a]me out from the tires.” The
dark truck then pulled into the slow lane to let the pickup pass. The
eyewitness described the Dakota’s braking maneuver as “[v]ery, very
aggressive.”
The eyewitness then noticed a light-colored Nissan Pathfinder ahead
on the right. The Pathfinder was on Hoffman Lane, near the stop sign at the
southwest side of that street’s intersection with Highway 29. There were two
stop lines at that part of the intersection, a straight one for vehicles
proceeding on Hoffman or turning left onto Highway 29 northbound, and a
diagonal one toward the southeast for vehicles turning right onto Highway 29
southbound (the direction in which the eyewitness was travelling).
The Pathfinder was either stopped or “creeping up” by the diagonal
stop line, facing southeast as if to turn onto Highway 29 southbound. The
eyewitness could see the Pathfinder’s driver, later identified as Tsavalas,
holding the steering wheel and “peek[ing] out” to the left through his “driver’s
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side window . . . to . . . look at traffic.” It looked like Tsavalas “wanted to go”
but was “hesitating,” and the eyewitness’s “foot [was] hovering over the
brake” in anticipation of the Pathfinder’s moving into traffic. The eyewitness
could not recall whether the Pathfinder’s turn signal was on.
At this point, the Dakota was in the fast lane about “a car length”
behind the eyewitness, and at least one vehicle was in front of the eyewitness
in the slow lane. As the eyewitness slowed, the Dakota passed him.
Simultaneously, Tsavalas “decide[d] to move at the last minute” to go across
Highway 29 instead of turning onto it southbound. Tsavalas “gassed it” into
oncoming traffic as if to make a U-turn, which the eyewitness described as “a
suicide move.” A vehicle in front of the eyewitness in the slow lane
“swerve[d]” and avoided hitting the Pathfinder, but the Dakota collided with
it. The eyewitness described the crash as “the perfect storm”: The Dakota’s
driver, later identified as Aguilar, could have avoided it if he were driving
more slowly, and Tsavalas made an “awful decision” to move forward when
he did.
The eyewitness, who braked in time and also avoided hitting the
Pathfinder, pulled over after the crash. The Dakota had crossed the center
median and was on the northbound side of the highway, facing south, and the
Pathfinder had “flip[ped] around” and was “sideways in the southbound
lanes,” facing west. The eyewitness approached the Pathfinder and saw
Tsavalas “[h]unched over” the steering wheel and struggling to breathe. The
eyewitness tried to help Tsavalas but could not get the car doors open, and
within a few minutes, Tsavalas stopped breathing.
While the eyewitness was standing by the Pathfinder, Aguilar
approached him. Aguilar said, “I wasn’t speeding, I wasn’t speeding.” The
eyewitness testified that Aguilar was “in [his] face . . . with no sense of like
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[his] space,” and he told Aguilar to go back to the Dakota. The eyewitness
never observed Aguilar express any concern about Tsavalas or attempt to
help him. Another witness who pulled over after the collision testified that
Aguilar was “distraught” and appeared to be “impaired or . . . in shock.”
California Highway Patrol (CHP) Officer Matthew Goulding was
already driving southbound on Highway 29 when the crash was first
reported, at 3:05 p.m., and arrived at the scene a few minutes later. He saw
Tsavalas “unconscious and slumped over the steering wheel” in the
Pathfinder. Officer Goulding removed Tsavalas through the front
passenger’s door, since the driver’s door was “crushed and stuck.” Tsavalas
was not breathing and did not have a pulse, and the officer performed CPR
on him until the paramedics arrived. Tsavalas was eventually pronounced
dead. The officer could not find a driver’s license in Tsavalas’s possession.
After his efforts with Tsavalas, Officer Goulding approached Aguilar,
who was standing by the Dakota. A video recording from the officer’s
dashboard camera that showed his interaction with Aguilar but did not
capture what they said was played for the jury.
Officer Goulding observed that Aguilar’s “eyes were red and watery,”
and “the odor of an alcoholic beverage [was] emitting from his breath and
person.” Aguilar was “struggling to maintain his balance” and “using the . . .
Dakota to help him stand up.” The officer testified that Aguilar’s “emotions
were kind of all over the place,” and “overall he was distraught” but “[t]here
[was] some laughing at times.”
Officer Goulding asked for Aguilar’s driver’s license, but Aguilar
initially refused to give it to him. Aguilar did not directly answer the officer’s
questions and “was generally uncooperative,” but he made the following
statements: “I did it again,” and “I hit the old woman. Look at her. She’s
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dead.”1 Aguilar “also mumbled about prior [DUI] arrests that he had,” but
“there was no articulable sentence that [the officer] could understand.”
C. Evidence of Aguilar’s Level of Intoxication
Officer Goulding followed as Aguilar was transported to the hospital,
where they arrived around 3:45 p.m. Aguilar had his eyes closed and was not
responsive when the officer tried to talk to him, preventing the officer from
conducting field sobriety tests. Later that night, Aguilar was arrested and
jailed.
The hospital performed a blood draw on Aguilar at 3:55 p.m., about
50 minutes after the collision. After Officer Goulding obtained a warrant,
another blood draw was performed at 7:31 p.m., over four hours after the
crash. Testing showed that the earlier sample had a blood alcohol content
(BAC) of .204 percent with a “measure of uncertainty” of “plus or minus
0.009 percent.” The later sample had a BAC of .135 with a measure of
uncertainty of “plus or minus 0.006 percent.” A pack of Modelo Especial beer
containing 11 unopened 12-ounce cans that were 4.4 percent alcohol by
volume was found in the Dakota’s back seat.
A criminalist who was qualified as an expert in alcohol’s effect on the
body opined that “everybody is too impaired,” both physically and mentally,
“to operate a motor vehicle safely at the alcohol level of .08 percent or
higher.” BAC is primarily based on the amount of alcohol consumed, the
person’s sex, and the person’s weight. The average rate of elimination of
alcohol is .018 percent every hour, which “can vary by plus or minus
.005 percent.” A person with a higher tolerance for alcohol may be able to
1 Tsavalas had “longer white hair,” possibly explaining why Aguilar
misidentified him as a woman.
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“mask[] . . . outward signs of intoxication,” but tolerance does not affect a
person’s BAC or level of impairment.
The criminalist opined that a decrease in BAC from .204 percent at
3:55 p.m. to .135 percent at 7:31 p.m. was consistent with the average rate of
elimination. A 12-ounce beer that is 4.4 percent alcohol by volume would
raise the BAC of a 130-pound man like Aguilar by approximately
.027 percent. Assuming that such a person had a BAC of .07 percent at
3:05 p.m., i.e., a legal level, there would have to be over four more beers of the
same size and proof unabsorbed in the person’s stomach for the person to
reach a BAC of .204 percent 50 minutes later without drinking more.
D. Tsavalas’s Autopsy
An autopsy showed a “severe” laceration on Tsavalas’s aorta, which
caused blood to “pour into the chest cavity.” His thoracic spine was broken,
and he had rib fractures near the spine that did not appear to be the result of
CPR. The forensic pathologist who performed the autopsy determined that
Tsavalas’s cause of death was multiple blunt impact injuries.
Tsavalas was also in poor health at the time of his death. He had an
enlarged heart, arteriosclerotic cardiovascular disease, metastatic cancer in
his pancreas and liver, and Type 2 diabetes. There was evidence that
Tsavalas had previously had a “large” stroke, but not recently. The
pathologist could not rule out “a mini stroke that would have caused
Mr. Tsavalas to become disoriented” before the crash, but Tsavalas’s observed
behavior of watching the traffic before pulling out suggested he was alert.
The pathologist considered the heart disease, liver cancer, and diabetes
to be “other significant contributing factors that [were] not related to the
primary cause of death.” While his “underlying natural disease may . . . have
made him more susceptible to the physical damage he received,” Tsavalas
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died as a result of his traumatic injuries, not his health conditions. A
toxicology screen was performed, but Tsavalas’s results were “not relevant” to
the pathologist’s opinion about the cause of death.
E. Other Evidence Related to the Crash’s Causes
1. Crash reconstruction evidence
As the investigating officer, Officer Goulding determined that the cause
of the collision was Aguilar’s driving under the influence of alcohol and “an
associated factor of unsafe speed.” The officer considered and ruled out the
possibility that Tsavalas caused the crash.
Another CHP officer testified as an expert in crash reconstruction.
Based on tire friction marks at the scene and information about the Dakota
and Pathfinder, including their weights, he reached various conclusions. The
Dakota was about 600 feet away when the Pathfinder entered the
intersection, which the officer testified was “in most minds . . . a clear
intersection.” The Dakota was traveling 86 miles per hour when its wheels
locked from “maximum braking” about 130 feet before the crash site, and it
was traveling 71 miles per hour at impact. Assuming the Pathfinder started
at a complete stop, it was traveling nine miles per hour at impact.
Based on the average perception and reaction time for a sober driver,
the officer opined that the crash would not have occurred if the Dakota had
been traveling 69 miles per hour or less when the Pathfinder entered the
intersection. He also testified that the higher the speed of a vehicle in a
collision, the more likely it is that serious injuries or a fatality will result.
2. Tsavalas’s medical history
About a month before Tsavalas died, his health declined and he was
transferred to the Veterans Home’s intermediate care facility, where “more
assistance with daily activities” was provided and nursing staff administered
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residents’ medications. Residents of this facility could come and go at will,
but they were supposed to sign out before leaving. On the day of the crash,
Tsavalas left without signing out, telling staff he was just going to the
parking lot.
Tsavalas was on 19 medications at the time of his death, for conditions
ranging from cancer and diabetes to allergies and an enlarged prostate.
These medications included gabapentin, for nerve pain; metoprolol, a blood
pressure medication; and amitriptyline, for nerve pain and insomnia.
Evidence was presented that these three medications could cause dizziness
and other symptoms that might impact driving, but Tsavalas had been taking
them for years and did not complain about side effects. Driving is not
contraindicated for people taking gabapentin, metoprolol, or amitriptyline.
Tsavalas had a history of falls, and he had a documented fall a few
weeks before the crash. After this fall, he “looked pale and weak” and
reported dizziness. In general, he tended to lack awareness of when he had
“a significant medical event” and would “carry on until symptoms became
more serious.”
A forensic scientist qualified as an expert in toxicology testified for the
defense. He reviewed Tsavalas’s medical records and described in more
detail potential driving-related side effects of Tsavalas’s medications.
Medications impacted individuals differently, and the fact that a side effect
was listed did not mean the effect was common. The scientist could not opine
whether or to what extent Tsavalas experienced side effects from his
medications. Nor could the scientist “opine whether a particular person
taking all of [Tsavalas’s] medications would be impaired for the purpose of
driving.”
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F. Aguilar’s Prior DUI Convictions
1. 2008 conviction
In October 2008, Aguilar crashed into a parked car in Napa, causing
property damage but no injuries. He told the responding police officer that he
“had three beers” and hit the other car after he looked down at the radio. The
officer did not “believe speed was a factor in that collision.”
The following month, Aguilar pled guilty to a misdemeanor DUI count
and admitted his BAC was .15 percent or higher.2 As part of the plea,
Aguilar signed a form agreeing he understood various consequences,
including the following Watson advisement: “You are hereby advised that
being under the influence of alcohol or drugs, or both, impairs your ability to
safely operate a motor vehicle. Therefore, it is extremely dangerous to
human life to drive while under the influence of alcohol or drugs, or both. If
you continue to drive while under the influence of alcohol or drugs, or both,
and, as a result of that driving, someone is killed, you can be charged with
murder.”
Aguilar also attended a court-ordered DUI education program,
Drinking Driver Program (DDP), for three months, which he completed in
March 2009. The program’s 2009 records no longer existed, but a coordinator
testified that at the time the program covered “the dangers of drinking and
driving,” including the Watson advisement.
2. 2019 conviction
In January 2019, Aguilar crashed into a power pole in Napa, causing
power lines to go down and the front of his car to catch fire. He had to be
extricated from the car and sustained “major lower leg injuries,” including an
2 The conviction was under Vehicle Code section 23152, subdivision (b),
and the BAC admission was under Vehicle Code section 23578.
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apparent broken leg. Aguilar, who smelled like alcohol, told a police officer
that he drank “six Modelo beers” before driving.
That April, Aguilar pled no contest to another misdemeanor DUI count
and admitted his BAC was .15 percent or higher.3 He again signed a plea
form that included the same Watson advisement that he could be “charged
with murder” if someone was killed as a result of his drunk driving. Aguilar
also attended DDP for another six months, completing the program in
November 2019. As part of the program intake, he was read a Watson
advisement and signed a contract that included it.
G. Procedural History
Aguilar was charged with felony counts of murder and gross vehicular
manslaughter while intoxicated and a misdemeanor count of driving with a
suspended license. In connection with the vehicular-manslaughter count, it
was alleged that he had two prior DUI convictions, the more recent for which
he was still on probation.4 After the prosecution rested, the trial court
granted Aguilar’s motion for acquittal of driving with a suspended license but
denied his motion for acquittal of murder.
The jury convicted Aguilar of second degree murder and gross vehicular
manslaughter while intoxicated. The trial court found that the prior-
conviction allegations were true and Aguilar violated probation in his other
pending case, but at the People’s request it later struck its finding under
3 The conviction was under Vehicle Code section 23152, subdivision (a),
and the BAC admission was again under Vehicle Code section 23578.
4 Aguilar was charged under Penal Code sections 187, subdivision (a)
(murder), and 191.5, subdivision (a) (gross vehicular manslaughter), and
Vehicle Code section 14601.2, subdivision (a) (driving with suspended
license). The prior-conviction allegations were made under Penal Code
section 191.5, subdivision (d), based on the 2008 and 2019 convictions
discussed above.
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Penal Code section 191.5, subdivision (d), that required a sentence of 15 years
to life in prison for the conviction of gross vehicular manslaughter. The court
then sentenced Aguilar to 15 years to life for the murder and imposed and
stayed the midterm of six years for gross vehicular manslaughter. The court
also terminated probation in the other matter and imposed a concurrent term
of 180 days in jail.
II.
DISCUSSION
A. Substantial Evidence Supports the Murder Conviction.
Aguilar claims his murder conviction must be reversed because there
was insufficient evidence either that he acted with implied malice or that he
proximately caused Tsavalas’s death. We are not persuaded.
1. General legal standards
Murder is the unlawful killing of a human being with malice
aforethought. (Pen. Code, § 187, subd. (a).) “Malice is express when there is
manifested a deliberate intention to unlawfully take away the life of a fellow
creature.” (Id., § 188, subd. (a)(1).) It “is implied when no considerable
provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart.” (Id., § 188, subd. (a)(2).) All murders
committed with implied malice are second degree murder. (People v.
Gonzalez (2012) 54 Cal.4th 643, 653.)
“Express malice is an intent to kill,” but implied malice does not
require such intent. (People v. Gonzalez, supra, 54 Cal.4th at p. 653.)
Instead, “[m]alice is implied when a person willfully does an act, the natural
and probable consequences of which are dangerous to human life, and the
person knowingly acts with conscious disregard for the danger to life that the
act poses.” (Ibid.) Thus, implied malice has “an objective component (an
intentional act endangering the life of another) and a subjective component
12
(knowledge and disregard of the danger).” (People v. Pierce (2025)
114 Cal.App.5th 508, 523 (Pierce).)
“ ‘ “To be considered the proximate cause of the victim’s death, the
defendant’s act must have been a substantial factor contributing to the
result, rather than insignificant or merely theoretical.” ’ ” (People v. Reyes
(2023) 14 Cal.5th 981, 988.) Moreover, “the defendant’s act must not merely
be dangerous to life in some vague or speculative sense; it must ‘ “involve[] a
high degree of probability that it will result in death.” ’ ” (Id. at p. 989.)
Watson held that vehicular homicide may be charged as second degree
murder “if the facts surrounding the offense support a finding of ‘implied
malice.’ ” (Watson, supra, 30 Cal.3d at p. 294.) “Implied malice contemplates
a subjective awareness of a higher degree of risk . . . , and involves an
element of wantonness which is absent in gross negligence,” the mind state
required for Aguilar’s manslaughter conviction. (Id. at p. 296; see Pen. Code,
§ 191.5, subd. (a).) And although gross negligence is evaluated objectively,
based on whether a reasonable person would have appreciated the risk, “a
finding of implied malice depends upon a determination that the defendant
actually appreciated the risk involved, i.e., a subjective standard.” (Watson,
at pp. 296–297, italics omitted.)
When considering a claim of insufficient evidence, “ ‘we review the
whole record to determine whether . . . [there is] substantial evidence to
support the verdict . . . such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] In applying this
test, we review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.’ ” (People v. Manibusan
(2013) 58 Cal.4th 40, 87.) Substantial evidence is “ ‘ “evidence that is
13
reasonable, credible, and of solid value.” ’ ” (People v. Bertsch and Hronis
(2026) 19 Cal.5th 183, 316.) Reversal is not required unless “ ‘it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508.)5
2. There was sufficient evidence that Aguilar subjectively
knew his drunk driving posed a high risk of death.
Aguilar first contends there was insufficient evidence that he was
actually aware that “his driving created a great risk of death to others.”
(Boldface and italics omitted.) This argument is meritless.
To determine whether a defendant “actually appreciate[d] the risk to
life involved” in driving while intoxicated, “courts generally refer to the
following factors” derived from Watson: “ ‘ “(1) [BAC] above the .08 percent
legal limit; (2) a predrinking intent to drive; (3) knowledge of hazards of
driving while intoxicated; and (4) highly dangerous driving.” ’ ” (Pierce,
supra, 114 Cal.App.5th at p. 531; People v. Wolfe (2018) 20 Cal.App.5th 673,
682–683.) But “ ‘ “courts have recognized that there is no particular formula
for analysis of vehicular homicide cases, instead requiring a case-by-case
approach,” ’ ” and there need not be evidence of all four factors to sustain a
finding of implied malice. (Nevarez v. Superior Court (2025) 115 Cal.App.5th
552, 562, 565; People v. Olivas (1985) 172 Cal.App.3d 984, 989.)
Aguilar acknowledges that evidence of the first three Watson factors
was presented, but he argues that they are “not dispositive of [his] intent . . .
5 Although Aguilar frames his claim as being that insufficient evidence
supports the murder conviction, he also discusses the standard of review of
the denial of a motion for acquittal under Penal Code section 1118.1. When
reviewing such a ruling, we evaluate “ ‘[t]he sufficiency of the evidence . . . at
the point the motion is made,’ ” but that distinction makes no difference here
because we reject the claim based solely on evidence from the prosecution’s
case-in-chief. (People v. Maciel (2013) 57 Cal.4th 482, 522.)
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and should not be mechanically applied.” As for the fourth factor, highly
dangerous driving, he argues there was no evidence his “driving was
unusually erratic.” (Italics added.) He also points to other evidence he
claims shows a lack of malice, including testimony that he was “distraught”
after the crash, the friction marks showing he applied the brakes right before
the crash, and evidence that most DUIs do not end in a fatality.
Aguilar’s position fails to account for our standard of review, which
asks not whether the jury could have reached a different conclusion but
whether there was sufficient evidence to support the conclusion it did reach.
(See Pierce, supra, 114 Cal.App.5th at p. 530.) The evidence that Aguilar
(1) had a BAC of well over twice the legal limit less than an hour after the
crash; (2) was driving over 25 miles per hour faster than the speed limit and
significantly faster than the speed of traffic, forcing other vehicles to change
lanes and requiring one prior instance of slamming on the brakes; (3) had
convictions for two prior DUIs, one of which resulted in serious injury to him;
and (4) was advised numerous times of the possibility that he could be
charged with murder if he drove intoxicated again and someone was killed,
amply supports the jury’s finding that he was aware of and consciously
disregarded the great risk of death his drunk driving created.
3. Substantial evidence supported the findings that Aguilar’s
driving involved a high probability of death and
proximately caused Tsavalas’s death.
Aguilar also claims there was insufficient evidence that his driving
involved a high degree of probability that death would result or proximately
caused Tsavalas’s death. Again, we reject this claim.
Aguilar admits that “it was generally foreseeable that [his] dangerous
driving could have resulted in an accident,” but he claims that “speeding
down the highway, even with a measurable amount of alcohol in his system,”
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did not present a highly probable risk of death as Reyes requires. But
Aguilar did not merely drink some alcohol and then speed. As already
discussed, evidence was presented that Aguilar’s BAC was .204 percent
almost an hour after the crash, and the jury could have reasonably inferred
that it was even higher during the collision. The evidence showed he was
driving at least 86 miles per hour right before the collision, well over the
speed limit. And the eyewitness’s testimony established that leading up to
the crash he was driving much faster than the other vehicles on the road,
forced several of them to move over, and almost rear-ended another vehicle.
Thus, even though we accept that not every instance of driving under the
influence of alcohol and/or speeding involves a high probability that death
will result, there was substantial evidence to support the finding that
Aguilar’s driving did. (See Pierce, supra, 114 Cal.App.5th at p. 530.)
Aguilar also claims he did not proximately cause death because
Tsavalas’s unsafe movement into the intersection “was an unforeseen,
superseding event.” “ ‘In general, “[p]roximate cause is clearly established
where the [defendant’s] act is directly connected with the resulting injury,
with no intervening force operating.” ’ [Citation.] If an intervening act,
event[,] or force is present, however, it is necessary to determine whether
that act, event[,] or force is sufficient to absolve the defendant of liability
‘because the “defendant may also be criminally liable for a result directly
caused by [the defendant’s] act, even though there is another contributing
cause.” ’ ” (People v. Brady (2005) 129 Cal.App.4th 1314, 1325 (Brady).)
“ ‘To relieve a defendant of criminal liability, an intervening cause must
be an unforeseeable and extraordinary occurrence. [Citation.] The defendant
remains criminally liable if either the possible consequence might reasonably
have been contemplated or the defendant should have foreseen the possibility
16
of harm of the kind that could result from [the defendant’s] act.’ ” (People v.
Carney (2023) 14 Cal.5th 1130, 1139.) Put another way, an intervening cause
does not become a superseding cause that absolves a defendant of liability
unless both the cause itself and “ ‘ “the results which it caused were not
foreseeable.” ’ ” (Brady, supra, 129 Cal.App.4th at pp. 1325–1326.)
Brady illustrates these principles. In that case, one of the defendants,
Brady, was convicted of recklessly starting a fire that caused “the deaths of
two firefighter pilots [whose planes] collided when responding to a fire that
broke out near [his] methamphetamine laboratory in a wooded area.” (Brady,
supra, 129 Cal.App.4th at p. 1318.) Brady argued that the trial court
improperly excluded various “evidence based on which the jury could have
found an unforeseeable superseding cause absolving him of responsibility for
the two deaths,” including that one of the pilots “committed intentional
misconduct by flying with a blood-alcohol level in excess of the limit
permitted by the Federal Aviation Administration.” (Id. at pp. 1331–1332.)
In rejecting this claim, Division Three of this court explained that “[f]or
the jury to have found [the pilot’s] flying with alcohol in his system to be a
superseding cause, it would have been required to find not only that [the
pilot’s] conduct was unforeseeable, but that the resulting fatal collision was
also unforeseeable.” (Brady, supra, 129 Cal.App.4th at p. 1335.) But even
if the jury concluded that the pilot’s BAC “was a substantial factor in causing
the midair collision, this finding would not have affected the collision's
foreseeability to Brady, and thus would not have absolved him of
responsibility for the deaths. The relevant question is whether, when
recklessly starting the forest fire, Brady could reasonably anticipate that
aircraft would be summoned to extinguish the fire and that a fatal collision
might result. The question is not whether Brady could reasonably anticipate
17
other causes that might also contribute to the collision.” (Id. at p. 1334, fn.
omitted.)
Aguilar repeatedly makes the conclusory assertion that “Tsavalas’s
‘suicide move’ ” was unforeseeable, but he fails to explain why. Aguilar is
correct that the collision would not have happened “[b]ut for Tsavalas’s
[allegedly] risky driving” (or the alleged “lack of supervision” that allowed
Tsavalas to leave the Veterans Home in the first place). But this hardly
demonstrates that Tsavalas’s act was so unexpected that Aguilar should be
relieved of liability.
In fact, there was substantial evidence that Tsavalas checked traffic
before moving into the intersection, had what most would consider “a clear
intersection,” and was traveling less than 10 miles per hour when the crash
occurred. This does not establish an “extraordinary” driving maneuver.
Even assuming that Tsavalas’s entry into the intersection was surprising or
sudden, there was also substantial evidence that Aguilar could have avoided
hitting the Pathfinder if he were sober and traveling at the speed of traffic.
Finally, even if Tsavalas’s act was unforeseeable, the fact that Aguilar’s own
unsafe driving would kill another motorist was not.6
In short, we agree with the Attorney General that “there is nothing
extraordinary or unforeseeable about being in a fatal collision if one drinks,
drives recklessly, and speeds on a highway with stop sign intersections where
there may be hazards . . . requiring adequate perception and reaction time.”
6 We reject Aguilar’s suggestion that he did not proximately cause
Tsavalas’s death because own his driving did not prompt Tsavalas’s “suicide
move.” The question is whether Aguilar proximately caused the ultimate
fatal result, not whether he caused other circumstances that also contributed
to that result.
18
Sufficient evidence supports the determination that Aguilar proximately
caused Tsavalas’s death.
B. Substantial Evidence Supports the Conviction of Gross
Vehicular Manslaughter While Intoxicated.
Aguilar next claims there is insufficient evidence that he acted with
gross negligence, requiring reversal of his manslaughter conviction.7
Applying the same standard of review as we did to his prior claim, we again
conclude that substantial evidence supports the conviction.
“Gross vehicular manslaughter while intoxicated is the unlawful killing
of a human being without malice aforethought, in the driving of a vehicle,
where the driving was in violation of Section 23140, 23152, or 23153 of the
Vehicle Code, and the killing was either the proximate result of the
commission of an unlawful act, not amounting to a felony, and with gross
negligence, or the proximate result of the commission of a lawful act that
might produce death, in an unlawful manner, and with gross negligence.”
(Pen. Code, § 191.5, subd. (a).) Gross negligence is defined as “ ‘the exercise
of so slight a degree of care as to raise a presumption of conscious indifference
to the consequences. [Citation.] “The state of mind of a person who acts with
conscious indifference[] to the consequences is simply, ‘I don’t care what
happens.’ ” ’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1204 (Ochoa).)
In determining whether a defendant acted with gross negligence,
“ ‘[t]he jury should . . . consider all relevant circumstances,’ ” including the
defendant’s intoxication level and “the manner in which the defendant
operated [a] vehicle.” (Ochoa, supra, 6 Cal.4th at pp. 1205, 1207.) A driver’s
“high level of intoxication” is particularly relevant because it “sets the stage
7 Aguilar also again asserts there was insufficient evidence that he
proximately caused Tsavalas’s death, but we reject this argument for the
same reasons given in section II.A.3. above.
19
for tragedy long before the driver turns the ignition key. ‘There is a very
commonly understood risk which attends every motor vehicle driver who is
intoxicated.’ ” (People v. Bennett (1991) 54 Cal.3d 1032, 1038.)
As we have said, unlike the test for implied malice, the test for gross
negligence “ ‘is objective: whether a reasonable person in the defendant’s
position would have been aware of the risk involved.’ ” (Ochoa, supra,
6 Cal.4th at p. 1204.) Nonetheless, evidence of a defendant’s “actual
awareness” of the risks the defendant’s acts created is also relevant to
whether a reasonable person would have recognized those risks. (Id. at
p. 1205.) As Ochoa explained, “[i]f the evidence showed that [a] defendant
actually appreciated the risks involved in a given enterprise, and nonetheless
proceeded with it, a finding of gross negligence (as opposed to simple
negligence) would be appropriate whether or not a reasonable person in [the]
defendant’s position would have recognized the risk.” (Ibid.)
We already concluded there was plenty of evidence that Aguilar
actually knew that his driving created a high risk of death. The same
evidence supports the conclusion that a reasonable person in Aguilar’s
position would have recognized that risk. (See Ochoa, supra, 6 Cal.4th at
p. 1205.) Again, Aguilar drove with a BAC well over the legal limit, exceeded
the speed limit by over 25 miles per hour on a busy highway, and did so after
previous DUI convictions, drunk-driving education programs, and warnings
that future intoxicated driving could result in a murder charge. This
evidence supports the jury’s finding that Aguilar acted with gross negligence.
In arguing otherwise, Aguilar again fails to appreciate the standard of
review. He claims that “[t]he evidence showed only that [he] was driving
aggressively, in excess of the speed limit, with a [BAC] above the legal limit,”
and he emphasizes that he did not engage in other behavior that other
20
decisions relied on to affirm convictions for gross vehicular manslaughter.
(Italics added.) But the fact that his driving could have been even more
dangerous than it was hardly establishes there was insufficient evidence of
gross negligence. (See City of San Diego v. Boggess (2013) 216 Cal.App.4th
1494, 1502 [looking at facts of other decisions finding substantial evidence is
“unhelpful” in reviewing such claims].)
Aguilar also contends the evidence showed he “did ‘care what
happen[ed],’ ” since he could not have anticipated Tsavalas’s “ ‘suicide move’ ”
and reasonably reacted to it by braking “in an effort to avoid the collision.”
But the question is whether the course of Aguilar’s drunk and unsafe driving
was grossly negligent, not whether his decision to brake once he finally
perceived the Pathfinder was. While an “ordinarily prudent person” probably
also would have braked to try to avoid the collision, an ordinarily prudent
person would not have been driving drunk at high speeds and tailgating
other drivers despite knowledge of the deadly consequences of such behavior.
Aguilar’s substantial-evidence challenge to his conviction of gross vehicular
manslaughter while intoxicated fails as well.
C. Aguilar Forfeited His Claim of Instructional Error.
Aguilar claims the jury instructions on causation were misleading and
require reversal of his convictions. We conclude this claim is forfeited.
1. Additional facts
The jury instructions on second degree murder (CALCRIM No. 520)
and gross vehicular manslaughter while intoxicated (CALCRIM No. 590)
both included the following language addressing causation:
“An act causes death if the death is the direct, natural, and
probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence
21
is natural and probable, consider all of the circumstances
established by the evidence.
“There may be more than one cause of death. An act causes
death only if it is a substantial factor in causing the death, and
the death would not have happened without the act. A
substantial factor is more than a trivial or remote factor. It must
actually contribute to the death. However, it does not need to be
the only factor that causes the death.”
The jury was also instructed under CALCRIM No. 620, entitled
“Causation: Special Issues,” as follows:
“There may be more than one cause of death. An act causes
death only if it is a substantial factor in causing the death. A
substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that causes death.
“The failure of Constantine Tsavalas or another person to
use reasonable care may have contributed to the death. But if
the defendant’s act was a substantial factor causing the death,
then the defendant is legally responsible for the death even
though Constantine Tsavalas or another person may have failed
to use reasonable care.
“If you have a reasonable doubt about whether the
defendant’s act caused the death, you must find him not guilty.”
The conference on jury instructions was held in chambers, after which
the trial court and parties memorialized the discussion on the record.
Aguilar did not object to CALCRIM Nos. 520, 590, or 620 as worded.8 The
parties and the court also discussed Aguilar’s potential desire for the jury to
be instructed on foreseeability as it related to causation. Aguilar’s trial
counsel stated he had decided “to rely on the instructions as is,” and the
8 In his briefing, Aguilar incorrectly says the trial court also gave
CALCRIM No. 240, the standard causation instruction. In fact, the People
withdrew that instruction.
22
prosecutor and the court agreed they preferred not to modify the instructions
to address foreseeability.
2. Aguilar’s claim is forfeited.
Aguilar does not argue that any of the three jury instructions
addressing causation incorrectly stated the law. Instead, he claims these
instructions “did not make clear that an unusual intervening event would
relieve [him] of criminal liability” and thus “did not capture the foreseeability
concept.” We agree with the Attorney General that Aguilar forfeited this
claim by failing to request additional language addressing foreseeability.
“ ‘Generally, a party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying
language.’ ” (People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012.) The
given instructions adequately conveyed that Aguilar’s act had to be a
substantial factor causing Tsavalas’s death and that death had to be a
natural and probable cause of that act. The trial court had no sua sponte
duty to instruct further on foreseeability or superseding causes, meaning
Aguilar had to request such language to preserve his appellate claim. (See,
e.g., People v. Alvarez (1996) 14 Cal.4th 155, 221–223; People v. Fiu (2008)
165 Cal.App.4th 360, 370–372.)
Attempting to avoid forfeiture, Aguilar argues that the alleged
instructional error “removed an element of the offense from the jurors’
consideration” and thus violated his constitutional rights. (See People v.
Merritt (2017) 2 Cal.5th 819, 824; Pen. Code, § 1259 [instructional error
affecting defendant’s “substantial rights” does not require objection to
preserve].) Specifically, he claims that CALCRIM No. 620 “created a
presumption that T[]savalas’s driving was merely a contributory factor in his
23
death, precluding consideration of [Tsavalas’s] conduct as an intervening,
superseding cause,” and thus “negated the proximate cause requirement.”
Thus, we briefly turn to the merits of Aguilar’s claim to determine whether
the purported error affected his substantial rights. (See People v. Quinonez
(2020) 46 Cal.App.5th 457, 463.)
We disagree with Aguilar that CALCRIM No. 620 precluded the jury
from determining he did not proximately cause Tsavalas’s death. Rather, it
correctly informed the jury that Tsavalas’s contributory negligence was not a
defense (People v. Bonilla (2018) 29 Cal.App.5th 649, 655) while affirming
that Aguilar could not be convicted of the homicide offenses unless his
conduct was a substantial factor in causing death. Furthermore, CALCRIM
Nos. 520 and 590 informed the jury that death had to be a natural and
probable consequence of Aguilar’s conduct. Considering the instructions as a
whole, as we must, we conclude there is no reasonable likelihood the jury
interpreted CALCRIM No. 620 in the manner Aguilar posits. (See People v.
Mataele (2022) 13 Cal.5th 372, 419.) As a result, the alleged deficiency in the
instructions did not affect Aguilar’s substantial rights, and his failure to
object below forfeited the claim.
D. No Error Appears in the Exclusion of Evidence About Tsavalas’s
Prior Driving and Suspended License.
Next, Aguilar claims the trial court abused its discretion and violated
his right to present a complete defense by excluding evidence about
Tsavalas’s prior driving, including the fact that Tsavalas’s driver’s license
was suspended at the time of the crash. We reject this claim.
1. Additional facts
Aguilar moved in limine to introduce evidence about Tsavalas’s prior
driving to support his defense that Tsavalas “was the sole cause of the
collision that resulted in his death.” Specifically, Aguilar made an offer of
24
proof concerning an October 2013 solo vehicle accident in which Tsavalas was
found unconscious after driving erratically. Aguilar also represented that in
October 2018, Tsavalas’s driver’s license was suspended “for medical
reasons,” and he was unlicensed at the time of his death. Finally, Aguilar
sought to introduce evidence that a friend of Tsavalas’s fraudulently
registered and insured the Pathfinder in the friend’s name and that Tsavalas
told his former brother-in-law “he would drive regardless of the fact that the
DMV had revoked his license.”
The prosecution opposed the motion. Relying on Brady, supra,
129 Cal.App.4th 1314, it argued that evidence about “the causes of the
victim’s alleged negligence” was “utterly irrelevant.” Although Aguilar could
“argue that the act of pulling onto the highway was a superseding cause
relieving him of liability,” he could not “argue why Mr. Tsavalas did so.” The
prosecution also argued that the proffered evidence was inadmissible under
Evidence Code9 section 352 because it lacked probative value, would function
“merely . . . to prejudice the jury against the victim,” and would “consume
possibly significant time and resources” to present.
After hearing argument, the trial court ruled that evidence about the
2013 collision was “too remote” and excluded it under section 352. In doing
so, the court analogized allowing evidence of “[s]omething that happened
seven years ago to someone whose medical status [at that time] we are
unaware of” and whose “issues . . . may have [since] resolved” to allowing
evidence of Aguilar’s entire driving record. The court also excluded evidence
that Tsavalas’s license was suspended, which was “like contributory
negligence in a civil matter, and not appropriate in a criminal case.”
9 All further statutory references are to the Evidence Code.
25
At a subsequent pretrial hearing, Aguilar renewed his request to admit
evidence that Tsavalas was unlicensed at the time of the crash. Aguilar’s
trial counsel argued the evidence was relevant to prove Tsavalas “caused his
own death” and it was not “foreseeable for him to be there in the first place
because he’s not supposed to be there, according to the DMV.”
The trial court declined to reconsider its ruling. The court said its
“concern has always been contributory negligence,” which does not “play[]
into these criminal cases,” meaning there was “only so much [it could] allow
in as it relates to the alleged victim.” The court also indicated it did not
accept the defense’s foreseeability argument, explaining, “[I]t’s not an issue
as to whether it was foreseeable that [Aguilar] would encounter someone on
the road who was an unlicensed driver, or someone not insured, or someone
who’s [not] wearing their seat belt. I don’t think that’s what the
foreseeability test is about.”
Finally, the issue came up again during discussion of a related issue
involving Tsavalas’s medications. When Aguilar’s trial counsel mentioned
the 2013 vehicular accident and the fact Tsavalas was unlicensed, the trial
court responded, “So I don’t want to relitigate all this. We’ve already
litigated this issue. I’m not allowing in the 2013 accident. It’s seven years
prior. It’s too remote, [section] 352. The 2018 incident [when Tsavalas’s
license was suspended], I understand we don't have much detail related to
the 2018 incident. So under [section] 352, I kept that out. I’m still standing
by my ruling.”
2. Aguilar’s evidentiary claim is forfeited.
We begin by considering the nature of Aguilar’s claim. The claim
focuses on the proffered “evidence of [Tsavalas’s] past driving record and
license suspension,” including the 2013 accident. According to Aguilar, even
26
though “the trial court invoked . . . [section] 352 when excluding the evidence,
its ruling was premised on relevancy,” and he focuses almost exclusively on
arguing that the evidence was in fact relevant to prove that Tsavalas’s
driving was a superseding cause of the collision.
We disagree with Aguilar’s characterization of the ruling at issue. The
trial court explicitly excluded the challenged evidence under section 352. It
found that the 2013 accident was “too remote,” and it did not have enough
information about the license suspension, which went to the unavailable
defense of contributory negligence.
Thus, we will analyze whether the trial court erred under section 352,
which permits the exclusion of relevant evidence if “if its probative value is
substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352;
see § 351 [relevant evidence is admissible “[e]xcept as otherwise provided by
statute”].) We review the court’s evidentiary ruling for an abuse of discretion.
(People v. Thomas (2023) 14 Cal.5th 327, 358.)
We agree with the Attorney General that Aguilar’s claim “necessarily
fails” because Aguilar does not challenge the actual basis for the trial court’s
ruling. Aguilar asserts only once in passing that the evidence at issue was
not “unduly prejudicial,” without explaining further. And although he
addresses the court’s stated concerns about contributory negligence, he does
not even mention its more specific determination that evidence of the
2013 accident was too remote. In these circumstances, we can and do reject
the claim simply because Aguilar did not even attempt to show the trial court
erred under section 352. (See Thompson v. County of Los Angeles (2006)
142 Cal.App.4th 154, 171 [challenge to exclusion of evidence under
27
section 352 waived where appellant argued only that evidence was relevant];
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [appellant has “burden
to affirmatively demonstrate error”].)
Even if we did address the merits of Aguilar’s claim, we would reject it.
Aguilar insists the trial court wrongly focused on the concept of contributory
negligence, which he agrees is not available as a defense in a criminal case.
He argues that he offered the challenged evidence not to prove contributory
negligence but to raise a reasonable doubt about proximate cause, as the
evidence tended to prove Tsavalas’s driving “was an unforeseeable
intervening force . . . that was so extraordinary . . . that it broke the chain of
causation.” But whether Tsavalas’s driving was unforeseeable and
extraordinary turned on the character of that driving, not the reasons
Tsavalas drove the way he drove. Whatever the explanation was for
Tsavalas’s supposedly unusual movement onto the highway—a medical
event, poor driving skills, or any other conceivable reason—it did not affect
the movement’s foreseeability from Aguilar’s perspective. (See Brady, supra,
129 Cal.App.4th at p. 1334.) The court did not abuse its discretion under
section 352—and thus did not violate Aguilar’s right to present a complete
defense—by excluding evidence of such limited probative value. (See
People v. McNeal (2009) 46 Cal.4th 1183, 1203.)
E. Aguilar Fails to Show the Trial Court Erred by Admitting
Evidence of the Facts Underlying His Prior DUI Offenses.
Aguilar also claims the trial court abused its discretion by admitting
evidence of the facts underlying his two prior DUI convictions. We are not
persuaded.
1. Additional facts
Before trial, Aguilar requested a section 402 hearing “on the scope and
admissibility of [his] prior DUI convictions” and sought to “[e]xclude details
28
. . . of prior DUI arrests as irrelevant and prejudicial,” since they did not bear
on the issue of implied malice. (Boldface omitted.) The prosecution, on the
other hand, sought to introduce evidence of the facts underlying the
convictions, including testimony of responding officers, “as proof of implied
malice.”
At a later hearing, Aguilar’s trial counsel conceded that the convictions
themselves and the fact his client received Watson advisements were
admissible, but counsel asserted that “the jury [might] conflat[e] the facts of
the previous case to the current case.” Counsel argued that evidence of the
underlying facts “may also run afoul of [section] 352, as it may consume
additional time, take[] several witnesses to talk about those priors.”
Focusing on Aguilar’s injuries from the 2019 incident, the prosecutor argued
that Aguilar “has very, very personal knowledge of the dangers of drinking
and driving,” which was “one hundred percent relevant” to implied malice.
The trial court ruled it would “allow testimony regarding the prior DUI
arrest[s].” The court agreed that the underlying facts were relevant to show
implied malice, including to the extent they demonstrated Aguilar’s
knowledge of the dangers of drunk driving “from [his] having experienced . . .
injury to himself” and “whether or not the act [has death as] . . . a natural
and probable consequence or is dangerous to human life.” The court was
willing to consider the issue further, however, and told defense counsel he
could submit supplemental briefing if he wished. Counsel did not do so.
During a later pretrial hearing, the trial court noted it had left open the
possibility of “further argument, if necessary,” but believed there had already
been “a pretty thorough discussion about the issue.” Aguilar’s trial counsel
agreed that they had discussed “whether or not [and] how much of the facts of
each conviction . . . will come in.” Counsel did not address the challenged
29
ruling further, instead objecting to other evidence related to Aguilar’s prior
offenses.
2. Aguilar’s claim lacks merit.
Evidence of a person’s prior crimes or other acts is admissible “when
relevant to prove some fact . . . other than [the person’s] disposition to commit
such an act,” such as intent. (§ 1101, subd. (b).) Even if such evidence is
otherwise admissible, a trial court may exclude it under section 352.
(People v. Rocha (2013) 221 Cal.App.4th 1385, 1397.) As we have said, that
statute permits a court to exclude evidence “if its probative value is
substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)
Again, we review the court’s evidentiary ruling for an abuse of discretion.
(People v. Thomas, supra, 14 Cal.5th at p. 358.)
As we did with the other evidentiary claim, we start by clarifying
Aguilar’s claim. One of the opening brief’s subheadings for the instant claim
is “The Underlying Facts of Appellant’s Prior Convictions Had No Relevance
to the Charged Offenses,” but Aguilar does not actually argue that these facts
were irrelevant to a valid issue under section 1101, subdivision (b). (Boldface
and italics omitted.) Instead, he contends the testimony about the
underlying facts “was cumulative and offered no further relevance on the
issue o[f] intent,” making it “more prejudicial than probative.” (Italics
added.) And the only authority he cites for this proposition establishes that
evidence is not rendered irrelevant merely because it is cumulative.
(People v. Smithey (1999) 20 Cal.4th 936, 973–974.) Rather, “the only ban on
cumulative evidence is found in . . . section 352.” (In re Romeo C. (1995)
30
33 Cal.App.4th 1838, 1843; accord People v. Heard (2003) 31 Cal.4th 946,
975.)
Thus, although the Attorney General argues at length that the
challenged evidence was relevant to prove implied malice, we do not interpret
Aguilar’s briefing to argue otherwise. Instead, we view Aguilar’s “relevance”
argument as an aspect of his claim under section 352, the other aspect of that
claim being that the trial court failed to weigh the evidence’s “probative value
against its potential for prejudice.”
The Attorney General argues that Aguilar forfeited both of these
aspects of his claim under section 352. To preserve an evidentiary claim, a
defendant “ ‘must make a timely and specific objection when the evidence is
offered.’ ” (People v. Harrison (2005) 35 Cal.4th 208, 230; § 353, subd. (a).)
Here, the only time Aguilar’s trial counsel mentioned section 352 was when
he stated the challenged evidence “may . . . run afoul” of that statute, since it
might “consume additional time, take[] several witnesses to talk about those
priors.” (Italics added.) And despite having the chance to argue the issue
further, counsel did not revisit the objection or otherwise suggest the court’s
analysis was inadequate. Thus, the only specific objection Aguilar made
under section 352 was that the evidence would require an undue
consumption of time. Although we will accept that he thereby fairly raised
the issue of cumulativeness, he did not fairly raise the issue of undue
prejudice.
We therefore conclude that Aguilar forfeited his claim that the trial
court failed to “engage in the required balancing process” to determine
whether evidence is unduly prejudicial in light of its probative value.
Although a court “ ‘ “need not expressly weigh prejudice against probative
value—or even expressly state that [it] has done so,” ’ ” it still must be
31
evident from “the record as a whole . . . that the court performed its
obligations” under section 352. (People v. Mendoza (2000) 24 Cal.4th 130,
178.) Here, the simple answer to Aguilar’s contention that the court did not
adequately balance the evidence’s probative value against its prejudicial
effect is that he never asked the court to do so.
As for Aguilar’s claim that the challenged evidence was cumulative of
the evidence of the prior DUI convictions and “their attendant requirements
and consequences,” it fails on the merits. Aguilar asserts that testimony
about the underlying facts of his prior DUI offenses “offered no further
relevance on the issue o[f] intent,” but he neither explains his reasoning nor
cites supporting authority. As a result, he fails to demonstrate that the trial
court abused its discretion under section 352 in admitting this evidence.
F. There Was No Cumulative Error.
Finally, Aguilar claims his convictions must be reversed because the
purported instructional and evidentiary errors were collectively prejudicial
even if not individually so. As he fails to demonstrate that any error
occurred, we necessarily reject this claim. (See People v. Sedillo (2015)
235 Cal.App.4th 1037, 1068.)
III.
DISPOSITION
The judgment is affirmed.
32
_________________________
Humes, P. J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Smiley, J.
People v. Aguilar A171060
33