P. v. Melnyk

Filed 6/18/08 P. v. Melnyk CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

This appeal involves a tragic automobile accident. On February 17, 2006, at 8:00 p.m., defendant Serhiy Melnyk entered an intersection driving at least 55 miles per hour, with no headlights on, and broadsided Kathy McGrews car, killing her instantly.

Defendant now contends:

1. The evidence of his gross negligence was insufficient to support his conviction of felony vehicular manslaughter.

2. The trial court committed prejudicial error by refusing appellants request to instruct the jury with CALJIC No. 2.40 (character evidence).

3. The trial court also erred by refusing to allow defendant to introduce testimony of his clean driving record to support his good character.

4. Cumulative errors require reversal.

We find no prejudicial error and affirm the judgment.

I

PROCEDURAL BACKGROUND

The jury found defendant guilty in count 1 of felony vehicular manslaughter with gross negligence (Pen. Code,  192, subd. (c)(1)), and found the special allegation that he fled the scene of a fatal accident true (Veh. Code,  20001, subd. (c)). The jury also found defendant guilty in count 2 of hit and run (Veh. Code,  20001, subd. (a)) and in count 3 of resisting arrest (Pen. Code,  148, subd. (a)(1)).^[1] Defendant was sentenced to state prison for a total term of seven years.^[2] Defendant filed a timely notice of appeal.

II

FACTUAL BACKGROUND

A. Prosecution

About 8:00 p.m. on February 17, 2006, John Montgomery was driving toward the intersection of Mustang and Fisher in Hemet. Montgomery was driving east on Mustang approaching Fisher. Fisher ran north and south, and Mustang ran east and west. Traffic control at the intersection of Fisher and Mustang consisted of stop signs on Fisher controlling north and south traffic. It was dark and lightly raining. Montgomery was traveling at approximately 40 to 45 miles per hour.

Montgomery observed a truck with only its running and parking lights, and not the front headlights, on, moving quickly (he estimated 60 to 80 miles per hour) north on Fisher. The truck was later identified as being driving by defendant. Montgomery then observed headlights coming west on Mustang, which was later identified as Kathy McGrews car.

Without reducing his speed, defendant drove through the stop sign on Fisher and into the intersection. Montgomery did not hear any screeching of tires. Defendants truck collided with the side of McGrews car. Montgomery had to veer off Mustang onto a dirt road to avoid the collision. The collision was the loudest one he had ever heard.

Montgomery immediately dialed 911. The 911 call was played for the jury. In that call, Montgomery described the crash as terrible. Montgomery reported, And . . . the pick up was just flyin off of the street and hit this car . . . . Montgomery then ran to McGrews car.

Presciliano Curiel lived near the intersection of Mustang and Fisher. Curiel ran to the accident. Defendant was no longer in his truck. Curiel ran to McGrews car; defendant was standing nearby. Defendant started apologizing to Curiel and asked him to help McGrew. Defendant appeared to be trying to pull McGrew from the car, and Curiel stopped him.

McGrew was nonresponsive. Curiel told defendant that there was nothing they could do for McGrew. Defendant then ran away from the scene, moving south on Fisher. Defendant never gave Curiel any identifying information, and he never came back to the scene. Curiel did not smell alcohol on defendants breath.

Hemet Police Officer Timothy McGinnis responded to the accident. Officer McGinnis had training in accident reconstruction. McGrew was unresponsive when he arrived at the scene. McGinnis found two fairly short preimpact skids in the westbound lane of Mustang. The vehicle traveling westbound on Mustang (McGrews vehicle) would have caused the marks. The impact on defendants truck caused the tires to deflate, and the rims gouged into the pavement after the accident. The truck also appeared to have rolled on its side for some time, but eventually righted itself. There were no preimpact skid marks on Fisher, which was evidence that defendant did not apply his brakes prior to the accident.

The headlights on defendants truck had been damaged to the point it was impossible to determine if they had been on at the time the accident occurred; however, the headlight switch was in the on position. The brakes appeared to be in working condition at the time of the accident.

There were no speed limit signs posted on Fisher going northbound. As such, the default maximum basic speed limit was 55 miles per hour. The streetlight over the stop sign on northbound Fisher was not working.

Based on Officer McGinniss training and experience, defendant broke several traffic laws, including Vehicle Code sections 21804, subdivision (a) (failure to yield at an intersection when you have a stop sign), 22450 (failure to stop at a stop sign), and 22350 (the basic speed law).

Based on tests conducted by Officer McGinnis at the scene, even if a person was driving northbound on Fisher without headlights when it was dark outside, the person could still see the stop sign on northbound Fisher. A telephone pole and street light partially obscured the stop sign at different distances driving north on Fisher, but the stop sign could still be seen. No stop ahead was painted on the ground approaching the intersection; stop was painted just before the limit line. Officer McGinnis did not have the proper equipment to estimate the speed of the two vehicles prior to the accident by examining the damage to the vehicles. He admitted that defendant could have been going 55 miles per hour at the time of the accident.

Defendant was found hiding in the attic of a house located in a residential area about 200 feet south of the intersection of Fisher and Mustang. He did not voluntarily come out of the attic; a police dog was sent into the attic to flush him out. The police dog found defendant and bit him on the leg. An officer had to hit defendant with a flashlight in order to subdue and handcuff him. Defendant had on a different shirt when he was apprehended than the one he had on when the accident occurred.

Curiel identified defendant at a field show up as the person who had been at the accident scene and had then run away. McGrew was pronounced dead at 8:53 p.m. from injuries suffered during the accident.

B. Defense

Defense expert witness Douglas Lee Edgar had been with California Highway Patrol for 18 years and was an expert in accident reconstruction. Edgar had reviewed all of the police reports.

According to his investigation, if a person was 375 feet from the stop sign on northbound Fisher, the stop sign would be partially blocked by telephone poles. In Edgars opinion, a driver at night, with low headlight beams on, would not be able to stop once the stop sign was visible if going 55 miles per hour. Edgar believed the streetlight was not illuminated in the northbound Fisher direction, but he had not gone to the scene at night.

Edgar surmised that if defendants truck had impacted with McGrews car at a speed of 75 to 80 miles per hour, McGrews car would have been ripped in half rather than just damaged. The damage to defendants truck was not consistent with his traveling at that high a speed. In Edgars estimate, McGrew was traveling at 32 to 39 miles per hour, and defendant was moving just slightly under 55 miles per hour. Edgar believed that it would have been very difficult for Montgomery to estimate defendants speed from a perpendicular angle, and such estimate would be made more difficult because it was dark.

The headlight switch in defendants truck was fully pulled out, indicating that either the headlights had been on or someone had pulled the switch out after the accident; the same switch ran the running board yellow lights when it was only pulled halfway out. Normal headlights when they are on low beams were designed to throw light down, forward, and to the right. It would not surprise Edgar that the headlights could be on and Montgomery, from his angle, could not see them.

Edgar agreed that stop signs had luminescent paint on them to make them more visible at night. The stop sign was never completely obscured when driving north on Fisher. Edgar admitted that it would have taken defendant 289 feet to stop if he was traveling 55 miles per hour and had slammed on the brakes. The stop sign was completely visible at 225 feet from the line, and there would have been another 80 feet into the intersection.

Natalya Melnyk and defendant were from the Ukraine. Natalya married defendant when she was 19 years old. She and defendant had come to the United States in September 2005 and lived in Sacramento. On the day of the accident, they had driven to Hemet from San Diego; they were visiting friends in both places. During the drive, defendant was very peaceful, like usually. It was his custom and habit to obey the traffic laws and drive in a normal way. Defendant earned a living as a truck driver in the Ukraine. He did not drink that day. When they arrived at the house in Hemet, they realized they had not brought a gift for the friends. Defendant drove away in their friends truck to get something. This was the first time defendant had driven in Hemet.

III

INSUFFICIENT EVIDENCE OF GROSS NEGLIGENCE

Defendant contends that insufficient evidence was presented to support his conviction for vehicular manslaughter with gross negligence. He asks this court to reverse his conviction or, in the alternative, reduce his conviction to a misdemeanor.^[3]

A. Standard of Review

We often address claims of insufficient evidence, and the standard of review is settled. A reviewing court faced with such a claim determines 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.] We examine the record to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Moon (2005) 37 Cal.4th 1, 22.)

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)

B. Analysis

Felony vehicular manslaughter is defined in section 192, subdivision (c)(1) as driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

Here, the jury was instructed with four possible unlawful acts that defendant committed, i.e., Vehicle Code violations: (1) Vehicle Code section 22350 (the basic speed law), which was defined as [n]o person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway; (2) Vehicle Code section 22450 (failure to stop at a stop sign); (3) Vehicle Code section 24400 (failure to have two lighted headlamps during hours of darkness); and (4) Vehicle Code section 21802 (failure to yield to right of way at an intersection), which was defined as [t]he driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop as required by Section 22450. The driver shall then yield the right-of-way to any vehicles which have approached from another highway, or which are approaching so closely as to constitute an immediate hazard, and shall continue to yield the right-of-way to those vehicles until he or she can proceed with reasonable safety. The jurors were given a unanimity instruction that they must agree on which Vehicle Code violation occurred. Any one of these violations could have been found true, and in fact all were supported by the evidence.

Defendant concedes that he ran the stop sign and presumably that he did not yield at the intersection. Defendant claims that the basic speed law was not violated because there was no testimony what the safe speed would have been. However, driving 55 miles per hour into an intersection was clearly too fast. Moreover, based on the conditionsit was dark and lightly raining, and defendant was unfamiliar with the area55 miles per hour could reasonably be considered an unsafe basic speed. Certainly, it was reasonable for the jury to conclude that defendant violated the basic speed law by traveling 55 miles per hour into the intersection.

Finally, defendant claims that the evidence was insufficient for the jury to conclude that his headlights were not on at the time of the accident. Montgomery testified that the only light he saw traveling northbound on Fisher was yellow. He clearly stated that he did not see any headlights. Although there was evidence to the contrary, we cannot say as a matter of law that the jury erroneously found that defendant was driving without headlights.

Although we find that sufficient evidence supports all four Vehicle Code violations, our inquiry does not stop there. In order for defendants conduct to rise to the felony level of vehicular manslaughter, the evidence must support that such violations that led to the fatality were done with gross negligence.

Gross negligence is 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 indifferences to the consequences is simply, I dont care what happens. [Citation.] The test is objective: whether a reasonable person in the defendants position would have been aware of the risk involved. [Citation.] (People v. Bennett (1991) 54 Cal.3d 1032, 1036; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1204.)

Gross negligence occurs when the defendants acts are such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences. [Citations.] (People v. Alonzo (1993) 13 Cal.App.4th 535, 540.) The facts must be such that the fatal consequences of the negligent act could reasonably have been foreseen. [Citations.] (People v. Clem (2000) 78 Cal.App.4th 346, 352; see also People v. Odom (1991) 226 Cal.App.3d 1028, 1032.) Something more than ordinary negligence is required.^[4] [G]ross negligence required to convict a defendant of gross vehicular manslaughter . . . may be based on the overall circumstances surrounding the fatality. (People v. Bennett, supra, 54 Cal.3d at p. 1040.)

On this record, we cannot say that no rational trier of fact could have found that defendant acted with gross negligence. Based on the totality of the circumstances, the stop sign was visible from at least 275 feet from the limit line, even without headlights. At no time approaching the stop sign was it completely obscured. Although the street light directly above the stop sign was out, the other three lights at the intersection were lit, and the stop sign could be seen in the dark. Defendant presented no credible evidence that he did not see the stop sign. Therefore, the jury could reasonably determine based on the Peoples evidence that defendant saw the stop sign but disregarded it.

Even if defendant did not see the stop sign, he did nothing to determine before entering the intersection whether someone was moving in the opposite direction. An ordinarily prudent or careful person under the same circumstances would not drive without headlights at night at a speed of at least 55 miles per hour approaching an intersection. It is inconceivable that a reasonable person would approach at this speed, especially since it was dark and lightly raining. It was inconceivable that defendant was unaware that this was an intersection since at least three streetlights were illuminated at the intersection. Based on the totality of the circumstances surrounding the accident, the jury could reasonably conclude that defendant was driving with conscious disregard for the consequences of his actions to support gross negligence. (People v. Bennett, supra, 54 Cal.3d at p. 1036.)

Defendant cites several cases that involved much more egregious and reckless behavior on the part of the drivers than the actions of defendant here. However, we cannot say as a matter of law that the jury was unreasonable in finding that defendants actions constituted gross negligence. As such, we reject defendants insufficiency claim and also reject that the charge should be reduced to a misdemeanor.

IV

FAILURE TO INSTRUCT WITH CALJIC NO. 2.40

Defendant contends that the trial court erroneously denied his request that the jury be instructed with CALJIC No. 2.40 regarding character testimony.

A. Additional Factual and Procedural Background

Defendant made an offer of proof that Natalya would testify regarding his good character, his state of mind just prior to the accident, the reason he was driving that night, the habit and custom of his driving habits, that he did not use drugs or alcohol, his driving record, and the amount of time that he had been in the country to give a reason for why he fled the scene of the accident. The prosecution objected to the introduction of the evidence on the grounds it could not be used to show he drove safely that day, and the evidence did not go to any other issue in dispute. Defendant stated he was seeking to admit the evidence under Evidence Code section 1105.^[5]

The trial court ruled that Natalya could testify regarding defendants safe driving based on her own observations. The trial court was not going to allow her to testify that he had never had an accident before, had never hit anybody before, or had never had a ticket before, as his driving record itself would not be admissible. The trial court noted that an examination under Evidence Code section 352 would not sway the court to hold otherwise.

In discussing the jury instructions, the trial court noted that defendant may want the jury instructed with CALJIC No. 2.40.^[6] The prosecution responded that no character evidence had been admitted. The trial court noted that there was evidence of his good driving habits but questioned whether it rose to the level of requiring CALJIC No. 2.40. The prosecution responded that it did not think that ones driving ability was a character trait; defense counsel responded that it was. The trial court refused to give the instruction, finding, I just dont see where the fact that in her opinion he is a safe driver is a character trait that might address gross negligence. [] I dont think 2.40 is appropriate.

B. Analysis

The People appear to concede that the trial court should have instructed the jury with CALJIC No. 2.40. This concession is well taken.

A criminal defendant may introduce opinion or reputation evidence of his own character to prove conduct in conformity therewith when that evidence is relevant to a defense. (Evid. Code,  1102, subd. (a).) The California Supreme Court has made clear that under Evidence Code section 1102, the defendants character may be proved only by opinion or reputationevidence of specific instances of conduct is not admissible to show the defendant is a person of good character. (People v. McAlpin (1991) 53 Cal.3d 1289, 1304-1311.) However, when the character witness is a layperson, his opinion must be based on his own perceptions. (Id. at pp. 1305-1308.) Therefore, as a foundational matter, the witness may recite specific instances of conduct as the basis of his opinion that the defendant has a good character. (Id. at pp. 1309-1310.)

Natalya testified that defendant always drove safely and followed the traffic laws. This was relevant to defendants defense that he was driving safely that night and did not intentionally run the stop sign. Once the trial court allowed in evidence of defendants good character trait for safe driving through Natalyas testimony, the trial court should have instructed the jury with CALJIC No. 2.40.

Having concluded that the trial court erroneously denied instruction with CALJIC No. 2.40, we must determine if such error was prejudicial. Defendant argues that it is reversible under both the federal and state standards. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) We disagree and conclude that, under either standard, the error was harmless.

First, the failure to instruct pursuant to CALJIC No. 2.40 was certainly not misleading. From the other instructions, a reasonable jury would conclude that the prosecution had the burden of proof beyond a reasonable doubt (CALJIC No. 2.90) and that the testimony of one witness was sufficient (CALJIC No. 2.27). While the court should have informed the jury that [g]ood character for the traits involved in the commission of the crime[s] charged may be sufficient by itself to raise a reasonable doubt, in CALJIC No. 2.40, there is no reason to believe that the jury would have believed the rule was any different; the failure to provide the specific admonition contained in the absent instruction would not prevent the jury from considering defendants previous driving habits in deciding if reasonable doubt existed.

Furthermore, there was evidence in this case that defendant did not stop at the posted stop sign and that he was going at least 55 miles per hour when he went through the stop sign. Hence, defendant clearly was not obeying the laws when the accident occurred. Had this been a case where there were no eyewitnesses to the accident so that whether the defendant actually committed a traffic violation was in dispute, evidence that the defendant had the character for good driving would be highly relevant to the jurys determination. However, here, even had the jury been instructed that it should consider defendants good character for driving in assessing his guilt, it is highly unlikely that it would have cast a reasonable doubt on his guilt, since there was no dispute he was in violation of the law when the accident occurred. The sole determination to be made by the jury was whether this violation was committed with gross negligence, a determination that is based on consideration of the circumstances of the accident. (People v. Bennett, supra, 54 Cal.3d at p. 1040.) Whether or not defendant had previously followed the traffic laws was of no help to defendant, because it was clear that here he had violated the traffic laws.

Further, no federal due process violation has been shown. Defendant was not estopped from introducing the good character evidence through Natalya. Additionally, as argued above, the failure to give the instruction was not misleading as to the jurys requirement to find defendant guilty beyond a reasonable doubt.

Finally, based on the strength of the evidence presented to the jury, as set forth, ante, we believe that had the jury been instructed with CALJIC 2.40, it is not reasonably probable that a more favorable verdict would have been reached. (People v. Watson, supra, 46 Cal.2d at p. 836.)

V

REFUSAL TO ADMIT TESTIMONY REGARDING DEFENDANTS

OFFICIAL DRIVING RECORDS

Defendant additionally claims that the trial court erred by refusing to allow him to introduce testimony through Natalya that he had a clean driving record to show his habit and custom of safe driving.

As set forth, ante, the trial court excluded any reference to the fact that defendant may have had a clean driving record.

Although not discussed by the trial court, Natalyas testimony that defendant had a clean driving record would probably have constituted hearsay. (Evid. Code,  1200.) At no time did defendant make an offer of proof in the lower court that he was going to produce his actual Department of Motor Vehicle records or that Natalya had any personal knowledge as to his driving record. Defendant only indicated that Natalya would testify that defendant had a clean record. Defendant failed to provide any foundation for this testimony, and it was therefore properly excluded.

The People contend on appeal that the driving record was inadmissible as specific instances of conduct under Evidence Code section 1102 and did not constitute habit evidence under Evidence Code section 1105. Defendant claims that evidence of a persons driving record is not an act, so it could not be a specific act excluded by Evidence Code section 1102.

Evidence Code section 1102 permits only evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation, and the introduction of specific instances of conduct as character evidence is precluded. (People v. Felix (1999) 70 Cal.App.4th 426, 431.)

We need not decide whether this evidence should be considered as inadmissible instances of conduct, as the fact that defendant had no moving violations was clearly irrelevant. Defendants previous clean driving record had little relevance in a case involving no less than four Vehicle Code violations. The fact that he may have had a clean record could have been due to the fact that he had not previously been caught violating the Vehicle Code. Natalyas personal observations of defendant driving safely certainly were much more relevant to his character trait of being a good driver. Under the circumstances of this case, his prior clean record had little or no relevance to the determination of whether he committed these Vehicle Code violations with gross negligence.

Moreover, any error was harmless because it is not reasonably probable that the jury would have reached a more favorable result to defendant had the challenged evidence been presented to the jury. (People v. Carter (2005) 36 Cal.4th 1114, 1152; People v. Malone (1988) 47 Cal.3d 1, 22; People v. Watson, supra, 46 Cal.2d at p. 836.) Initially, the jury obviously rejected Natalyas testimony regarding defendants prior driving habits. Moreover, as discussed, ante, the evidence that defendant was driving in a grossly negligent manner at the time this accident occurred was supported by the evidence, and any evidence that he previously had had a clean driving record would not change that determination.

VI

CUMULATIVE ERROR

Defendant contends that the errors in this case, taken together, are prejudicial and require reversal of his conviction. We have addressed each of his claims and have concluded that if any error occurred it was harmless. Because the cumulative effect of harmless error necessarily is harmless, we must reject this final contention. (People v. Cook (2006) 39 Cal.4th 566, 608.)

VII

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Richli

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The minute order and abstract of judgment state that defendant was sentenced to the midterm of 3 years on count 2, which was then stayed. At sentencing, the trial court stated that defendant would serve the midterm of 2 years in state prison; however, the correct sentence is the midterm sentence of 3 years as reflected on the abstract of judgment and minute order. The People, not defendant, brought this to the courts attention. This alone constitutes waiver of the issue by defendant for failing to raise any sentencing error in his opening brief. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) Further, defendant apparently does not object to the Peoples argument that the minute order and abstract of judgment state the correct sentence. We will therefore leave the minute order and abstract of judgment intact; it is not an illegal sentence and appears to be correct.

^[3] After the presentation of the Peoples case, defendant brought a section 1118.1 motion to dismiss count 1 or, in the alternative, reduce the charge to a misdemeanor, because gross negligence had not been shown by the Peoples evidence. The trial court denied the motion on the grounds that defendant blew through a stop sign (which was visible), without stopping, and there was credible evidence he did not have his headlights on. After the defense case, defendant brought another motion to dismiss on the grounds that the People were conceding he was not speeding and, again, because no gross negligence had been shown by the evidence. The trial court denied the motion to dismiss and the request to reduce the charge to a misdemeanor, finding that there was sufficient evidence he did not stop at the stop sign, he never applied his brakes, and his headlights were not on.

^[4] The jury was instructed on gross negligence (CALJIC No. 3.36) in conformity with the above definition. The jury was also instructed with the lesser included offense of vehicular manslaughter with ordinary negligence and the definition of ordinary negligence.

^[5] Evidence Code section 1105 provides, Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.

^[6] CALJIC No. 2.40 provides in part: Evidence has been received for the purpose of showing the good character of the defendant for those traits ordinarily involved in the commission of a crime, such as that charged in this case. [] Good character for the traits involved in the commission of the crime[s] charged may be sufficient by itself to raise a reasonable doubt as to the guilt of a defendant. It may be reasoned that a person of good character as to these traits would not be likely to commit the crime[s] of which the defendant is charged. (CALJIC No. 2.40, 2006 ed.)