P. v. Pappas
Filed 8/24/12 P. v. Pappas CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON RUTAN PAPPAS, JR.,
Defendant and Appellant.
D059177
(Super. Ct.
No. INF065853)
Appeal from
a judgment of the Superior Court
of
County, David B. Downing, Judge. Affirmed.
A jury
convicted Jason Rutan Pappas, Jr. of second
degree murder (Pen. Code,
§ 187, subd. (a)); recklessly
evading a police officer (Veh. Code, § 2800.2); driving while under the
influence (Veh. Code, § 23152, subd. (a)) and driving while intoxicated with a
blood alcohol concentration over 0.08 percent (Veh. Code, § 23152, subd.
(b)). In bifurcated proceedings, the
trial court found true allegations that Pappas had incurred one strike prior as
a juvenile, and subsequently incurred five prior offenses. The court sentenced Pappas to 32 years to
life in state prison as follows: fifteen years for the second degree murder
conviction, doubled because of his prior juvenile adjudication plus two years
for evading a police officer.
Pappas
contends: (1) the trial court
erroneously declined to instruct the jury with his proffered pinpoint
instruction regarding malice; (2) the prosecutor committed misconduct in
closing arguments; (3) the jury committed misconduct; (4) the cumulative effect
of the errors deprived him of his rights
to due process and a fair trial; and (5) the trial court improperly relied
on his prior juvenile adjudication to enhance his sentence. We affirm.
BACKGROUND
On June 3, 2009, Cathedral City Police
Officer Daniel Clary, Jr. was driving his marked patrol car at approximately 3:55 a.m., when he saw Pappas drive by at
approximately 80 miles per hour in a 35 mile-per-hour zone. Officer Clary turned on his patrol car's
siren and flashing lights and gave chase.
Pappas continued driving over the speed limit and failed to stop,
despite having opportunities to do so.
At one point, Pappas drove into a hotel parking lot, reduced his speed
to about four miles per hour, and exited the parking lot. He next ran a red light and increased his
speed to approximately 90 miles an hour, entered a highway, and drove across
all three lanes of traffic. At an
intersection, Pappas tried to make a turn while driving approximately 85 to 90
miles per hour, and hit a palm tree. The
chase lasted approximately four minutes and covered about three miles.
Officer
Clary approached the vehicle and saw that Pappas and a passenger, later
identified as Gregory Fisher, were both unconscious. Pappas regained consciousness, and the
officer asked him if he had been drinking alcohol. Pappas answered in the affirmative. The toxicologist testified that Pappas's
blood alcohol content measured 0.25 percent.
At the accident scene, Fisher was unresponsive and gasping for breath. Fisher was taken to the hospital but did not
regain consciousness, and was pronounced dead shortly afterwards.
The parties
stipulated, and Pappas also testified, that 12 years earlier he had crashed a
vehicle during a police chase. Pappas
had then pleaded guilty to driving under the influence. At that time, the trial court orally informed
him―and Pappas subsequently signed a statement advising him―that
being under the influence of alcohol or drugs impairs his ability to drive or
safely operate a motor vehicle, it is extremely dangerous to human life to
drive while under the influence, and if he did so and killed someone, he could
be charged with murder. Pappas also
testified that independent of the trial court's previous warning, he had
thought it was dangerous to drive while intoxicated.
Pappas
unsuccessfully moved for a new trial on grounds of juror and
DISCUSSION
I.
Pappas
contends the trial court violated his constitutional right to due process of
law by erroneously refusing to instruct the jury with a pinpoint instruction he
had proffered that sought to modify CALCRIM No. 520 to incorporate a quotation
from People v. Garcia (1995) 41
Cal.App.4th 1832, 1849, disapproved on other grounds by People v. Sanchez (2001) 24 Cal.4th 983, stating, "In order to
establish the requisite intent for [implied] malice murder, you must find that
the defendant actually appreciated that his action would likely result in
death."
title="">[1]
Pappas contends, "Here, the
only matter in dispute was what [he] actually appreciated at the time of the vehicle
crash. If [he] actually appreciated he
was performing an act that carried a risk to human life, there was implied
malice and the crime was second degree murder.
However, if [he] did not actually appreciate that his act carried a risk
to human life, there was no implied malice and the crime should have been
manslaughter." He further contends
the court's instruction with CALCRIM No. 520 did not suffice because it
"did not make clear that the 'conscious disregard' relates only to what
the defendant actually appreciates.
Instead it focused on whether [he] deliberately performed the act with
knowledge of its danger irrespective of whether the defendant had an actual
appreciation of the risk involved in the act."
The court
declined the pinpoint instruction because CALCRIM No. 520 and CALJIC No. 3.81
do not use the phrase, "high probability that death will
result." The court instead
instructed the jury about implied malice with CALCRIM No 520 as follows: "The defendant acted with implied malice
if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were
dangerous to human life;
[¶] 3. At the time he
acted, he knew his actions [were] dangerous to human life; and [¶] 4. He acted with conscious disregard to human
life. [¶] Malice aforethought does not require hatred
or ill will toward the victim. It is a
mental state that must be formed before the act that causes death is
committed. It does not require
deliberation or the passage of any particular period of time."
The California Constitution
guarantees a defendant's "right to have the jury determine every material
issue presented by the evidence" and addresses the prejudicial effect of
instructional "misdirection of the jury." (People
v. Flood (1998) 18 Cal.4th 470, 480-483; Cal.
Const., art. VI, § 13.) "[W]rongly
omitted instructions may . . . 'misdirect' the jury's deliberations." (Flood,
supra, at p. 487.) Instructional errors that remove an element
of a crime from the jury's consideration may be analyzed in the "context
of the evidence presented and other circumstances of the trial to determine
whether the error was prejudicial" under a harmless-error analysis. (Id.
at pp. 489-490, 500.) Such errors are
reviewed to determine whether the verdict would have been the same beyond a
reasonable doubt had the jury been properly instructed. (Id.
at p. 499; Chapman v. California
(1967) 386 U.S. 18, 23-24.)
Second degree murder is an unlawful
killing with either express or implied malice, but without the premeditation
and deliberation that elevates the offense to first degree murder. (People
v. Prince (2007) 40 Cal.4th 1179, 1265-1266; People v. Bohana (2000) 84 Cal.App.4th 360, 368.)
The California Supreme Court has
stated: "We have suggested that 'in
appropriate circumstances' a trial court may be required to give a requested
jury instruction that pinpoints a defense theory of the case . . .
[Citations.] But a trial court need not
give a pinpoint instruction if it . . . [citation] merely duplicates other
instructions[.]" (
558.) In determining the correctness of jury instructions, we consider the
instructions as a whole. (People v.
Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can only be found to be ambiguous
or misleading if, in the context of the entire charge, there is a reasonable
likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894,
957, overruled on other grounds by People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The California Supreme Court
has noted with approval that CALCRIM No. 520 uses the definition of implied
malice the court has articulated in its prior cases. The instruction emphasizes the defendant must
act with " 'conscious disregard for human life.' " (People
v. Knoller (2007) 41 Cal.4th 139, 152.)
Here, in
light of the trial court's instruction with CALCRIM No. 520 and one special
instruction Pappas proffered, Pappas's other proposed pinpoint instruction was
duplicative. Moreover, Pappas was warned
by the trial court 12 years earlier about the danger of driving while under the
influence, and Pappas testified he was independently aware of that danger. Accordingly, the court did not commit instructional
error.
Pappas
concedes that the trial court's warning to him 12 years earlier was certainly
probative as to whether he subjectively appreciated the risk; nonetheless, he
maintains the warning was not dispositive.
We are not persuaded. The jury
reasonably could infer based on the trial court's warning that Pappas knew the
risk he took when he drove recklessly under the influence of alcohol. Pappas also claims any error was not
harmless, particularly because the jury raised questions about the definition
of implied malice. We perceive from this
that the jury carefully reviewed the facts and law to determine any reasonable
doubt as to Pappas's guilt. Absent some
indication otherwise, we conclude the jury understood from the instructions it
was to decide if Pappas knew before he acted that his actions were dangerous to
human life, and the jury did so.
II.
Pappas
contends the prosecutor made several comments constituting prosecutorial
misconduct during closing arguments.
We set forth the various comments
by the prosecutor to which defense counsel objected, and the trial court's
ruling. At the start of closing
argument, the prosecutor said, "[V]igilance in the face of this particular
crime is a virtue, and lenience is a luxury we simply can no longer
afford." The court sustained
defense counsel's objection that the prosecutor was appealing to the jury's
passions, and told the prosecutor to stay away from anything relating to
sentencing. The prosecutor spoke of the
tragedy of Fisher's death, including its painful repercussions on others. Defense counsel objected, and the court told
the prosecutor to "just go to the facts, please."
The prosecutor continued: "We heard Officer Clary testify he's [
neighborhood of a hundred D.U.I.'s, recognized by MADD [Mothers Against Drunk
Driving] two years ago for his performance on D.U.I.
investigations[.]" The court
overruled defense counsel's objection, stating, "That is the
evidence."
The prosecutor attacked the defense
theory that Pappas's prior head injury caused the defendant's conduct, saying,
"There was the odor of alcohol on his breath. Did a head injury cause that? [Pappas] was also slurring his speech, watery
eyes, and unsteady on his feet. In any
D.U.I. crash, you're always going to have that ready-made defense: It was a crash, not the booze, that caused
the objective symptoms of intoxication."
The court overruled the defense objection that the argument was
improper.
The prosecutor argued, "Then
the defendant told us that he didn't think it was dangerous. He didn't think it was dangerous because
there was no traffic, no near collisions, he can handle himself. Defendant was driving at night with nearly
empty streets. He's a good drunk
driver. He didn't think this was
dangerous to human life in that condition, the manner in which he was
driving. [¶] He doesn't get to decide that. The law doesn't say it's okay for certain
people to drive under the influence at high speeds." The court sustained an objection that the
argument was improper and misquoted the law.
The prosecutor argued: "Now, we've seen this too many times,
and, as a society, we took a stand and we said, 'no more.' We wrote laws with teeth, with harsher
punishment for repeat offenders[.]"
The court sustained the defense objection to that statement and
cautioned the prosecutor to "stay away from all that stuff." The court also sustained an objection that
the prosecutor was personalizing the argument when he told the jurors: "The 12 of you are the conscience of
this community." On the same
ground, the court sustained an objection to this statement by the
prosecutor: "What will this
community's response be? You are our
voice." The court admonished the
prosecutor to "just talk about the facts of this case."
Yet again, the court sustained an
objection to the prosecutor's follow-up argument: "Ladies and gentlemen, it is not only
this community's criminal justice system's moral authority that is at stake
here, it is its credibility. Make it
clear to this defendant that we were not bluffing; we mean what we say, what we
promise we are good for. [¶] This criminal justice system made a
commitment to this defendant, and your verdict is reflective of our resolve. Be steadfast and resolute." The court instructed the jury, "[Y]our
verdict has to be based on what you heard in this trial, and the evidence and
the law that I gave you."
New Trial Motion Based
on Alleged Prosecutorial Misconduct
The trial court discussed defense
counsel's claim of prosecutorial misconduct during a motion hearing: "[I]n his motion, [defense counsel] laid
out each of the comments made in closing argument. I have reviewed both the transcript . . . and
the defense lawyer[']s . . . analysis of it.
[¶] . . . I sustained those
objections that I thought should be sustained.
I overruled the [other] objections . . . so I don't think [the
prosecutor's] remarks rise to a level of misconduct." The court noted it had admonished the
prosecutor to stick to the facts of the case.
The court concluded any error by
the prosecutor was harmless beyond a reasonable doubt: "So, in any case, the evidence against
Mr. Pappas was quite overwhelming, and anything [the prosecutor] may have said
in this area certainly wouldn't have swayed the jury one way or another, since
the evidence spoke for itself. [¶] And the evidence here was overwhelming. A fire truck and an ambulance responded,
returning to a station after another call came upon the car crashed. They stopped and rendered aid, found the
passenger unconscious, unresponsive in the right front seat, and they went into
respiratory and cardiac arrest at the scene, and they found Mr. Pappas behind
the wheel. [¶] A police officer from Cathedral City Police
Department chased Mr. Pappas, watched his car crash into the tree, and ran up
there and found Mr. Pappas behind the driver's wheel. [¶]
And the right front passenger died.
[¶] And Mr. Pappas's blood
alcohol level was three times the legal limit.
And Mr. Pappas had been warned by [a different judge] a year previously,
he had been given the [People v. Watson
[(1981)] 30 Cal.3d 290] . . . advisement when he had
plead[ed] guilty to driving under the influence misdemeanor. . . . and he was speeding really fast,
anywhere from 70 to 80 [miles per hour], maybe faster, trying to get away from
the [police], and that's when he crashed.
So as far as Watson murders
are concerned, this was a very, very strong case for the [People]. [¶] So
the evidence against Mr. Pappas was in fact overwhelming and the comments made
by [the prosecutor], while I wouldn't have done it had I been the prosecutor,
that isn't the standard, and I don't find they were misconduct."
Pappas
concedes, "The court did sustain numerous defense objections to the
prosecutor's inflammatory rhetoric and provided the occasional admonishment." Nonetheless, Pappas argues, "In the face
of each sustained objection and/or admonishment by the trial court, the
prosecutor merely continued exactly where he had left off."
Applicable Law
It is misconduct for a prosecutor
to make arguments that appeal to the jury's passion or prejudice, to introduce
inadmissible evidence through the backdoor of impermissible questions, to
misstate the law, or to impugn the credibility of defense counsel. (People
v. Leonard (2007) 40 Cal.4th 1370, 1406; People v. Hudson (1981) 126 Cal.App.3d 733, 735-740.) In short, it is misconduct to use deceptive
or reprehensible methods to persuade the court or the jury. (People
v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial
misconduct includes appealing to the sympathy or passions of the jury. (People
v. Vance (2010) 188 Cal.App.4th 1182, 1192 (Vance).) For example,
inviting the jury to put itself in the victim's position and imagine what the
victim experienced "is a blatant appeal to the jury's natural sympathy for
the victim." (Id. at
p. 1188.) Likewise,
urging the jury to consider the impact of the crime on the victim's family is
prosecutorial misconduct. (
When the
misconduct claim focuses upon comments made by the prosecutor before the jury,
the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.) In Vance,
for example, the court found the prosecutor's improper comments prejudicial
because "they 'may have been the deciding factors which brought about his
conviction' of first degree murder."
(Vance, supra, 188 Cal.App.4th at pp. 1206-1207.) We will reverse only if a different result
was reasonably probable absent the misconduct.
(People v. Ochoa (1998) 19
Cal.4th 353, 466.)
To preserve for appeal a claim of prosecutorial misconduct,
the defense must make a timely objection at trial and request an admonition;
otherwise, the point is reviewable only if an admonition would not have cured
the harm caused by the misconduct. (
591.)
We conclude
that even assuming, for the sake of argument, that the challenged statements
crossed the line from heated argument to misconduct, it is unlikely the jurors
would have been swayed by any of the prosecutor's remarks because objections
were properly sustained and the jury admonished. There was no dispute that Pappas was driving
while intoxicated and he caused the collision or that the injuries Fisher
suffered caused his death. The only
issue at trial was whether Pappas had the requisite state of mind for implied
malice second degree murder. There was
overwhelming evidence that he did. This
includes the undisputed evidence that he had a prior conviction for evading a
police officer that involved a car collision, after which the court warned
Pappas that if he caused another accident and someone died, he would be charged
with murder. The only reasonable
inference from this evidence was that Pappas knew the natural and probable
consequences of driving while under the influence are dangerous to life. Under these circumstances, it is not
reasonably probable the jury would have reached a different result had the
prosecutor not made the challenged statements.
III.
Pappas contends various acts of juror misconduct occurred
because one juror refused to deliberate; during voir dire, a juror concealed
her affiliation with MADD; and some jurors bullied the complaining juror, including
by asking her whether she was "stupid."
During
deliberations, a complaining juror told the judge she believed one juror was
biased because at the start of deliberations he firmly expressed his view of
the case, and the complaining juror believed the other jurors were influenced
by him and proceeded to influence the rest of the jurors. The court asked the complaining juror if they
were still deliberating, and she answered affirmatively, but also said that
because the other jurors had "their feelings fixed," she and another
juror were feeling pressured. The court
asked the complaining juror, "You don't feel any problem going back to the
panel; right?" She replied,
"No, because I am standing my ground.
I am not―nobody is pushing me around. I have my―I have my beliefs[.]"
The court
next interviewed the jury foreperson, who said one of the jurors apparently was
having a problem with the concept of intent.
The foreperson confirmed the jurors were still deliberating freely and
openly, and said they had reached verdicts on three of the four counts. The foreperson elaborated, "[W]e
were . . . trying to . . . go over the
laws and their―the guidance that we've gotten from the Court,
step-by-step to the point where we are writing it out and trying to get a
consensus on each of these individual points." The foreperson said the jury was trying hard,
and he did not believe the situation was hopeless, noting that one juror
"reaches her conclusions slowly and very deliberate[.]" The court asked the foreperson, "Do you
think that juror feels intimidated by the group or―" and the foreman
interjected, "I can tell you there is zero intimidation there."
After
interviews with those two jurors, defense counsel moved for a mistrial on the
ground the complaining juror had said she felt intimidated. In denying the motion, the court ruled that
the foreperson had testified no intimidation had occurred.
The jury
requested the court provide a definition of malice aforethought, and after
discussions with counsel, the court instructed the jury anew with CALCRIM No.
520 and two other instructions. The
court subsequently answered two other jury questions about malice aforethought
by referring the jury to its previous instructions. That same day, the jury reached guilty
verdicts on all counts. The court polled
each juror, asking, "[A]s to the verdicts just read, counts 1 through 4,
are these your verdicts?" Each
juror answered, "Yes."
New Trial Motion Based
on Alleged Juror Misconduct
Defense counsel obtained the trial
court's permission to contact jurors to prepare a new trial motion. At the hearing on the motion, the court
evaluated one aspect of the juror misconduct allegation, and summarized its
investigation into the matter:
"[The complaining juror] had said that . . . a woman juror[] had
made a comment about 'We at MADD had finally got some new laws passed,' or
something to that effect. So there was some
concern on my part that a member of MADD was on the jury. . . .
[¶] We contacted six female
jurors, one of whom we could never find, so then we were down to five. One of the female jurors refused to cooperate
. . . . [¶] So we were left with four who said they would
talk to us. Those four jurors . . .
wrote declarations . . . . None of the
four said that any member of the jury said, 'We at MADD.' One or two of them said the statement was
made about MADD, but none of the four jurors who filled out the declarations
were any of those four. [¶] In any case, nobody said they were a member
of [MADD], leading me to conclude that there were no members of [MADD] on the
jury."
At the hearing on the new trial
motion, the complaining juror testified she was "verbally bullied"
during deliberations, elaborating, "One elderly juror―because what I
would do is I would listen to what everybody had to say, and I would look at
the judge's instructions, and then I would look at the evidence, and she told
me, 'Are you stupid or something? Can't
you get it?' And I respect my elders,
but she was basically―I basically told her to back off and leave me
alone."
The court
concluded there was no misconduct under the applicable legal standard: "First of all, the Court must determine
whether the affidavits supporting the motion are admissible. And four jurors filled out declarations and
they were admitted, so yes. [¶] Second, if the evidence is admissible, the
Court must consider whether the facts establish misconduct. And after considering the affidavits and
listening to [the complaining juror] testify, I concluded there was no
misconduct because there was not a MADD member on the jury. [¶]
Third part of the test is assuming misconduct, the court must determine
whether the misconduct was prejudicial.
So I never had to determine the third element of this inquiry, so that
was the end of that. [¶] So I could not find any juror misconduct
here, and there isn't any; there was none."
The court
addressed the other aspect of the charge of jury misconduct regarding failure
to deliberate, and concluded: "The
jurors deliberated. . . . [The
complaining juror] wrote me a note. I
brought [that juror] in on the record in chambers with a court reporter, a
transcript of which has been provided.
[¶] I brought the foreperson of
the jury in after that and had him tell me what was going on, and I concluded
that the jury was acting appropriately at that time, and they were
deliberating. [¶] Furthermore, I might add that in all four
affidavits written by the four jurors, they all said that everybody was treated
appropriately. . . . [One juror said in an affidavit] that none of
the jurors were irrational or emotional about drunk driving. 'I sat next to [the complaining juror] during
the deliberations process, and all the jurors were very kind, calm and
professional in their dealings with her.'
[¶] So I don't . . . find any
failure to deliberate. I think my
analysis of [the complaining juror] is that she is suffering from judicial―she
made a decision, and after the fact, she regrets it. . . . [¶]
. . . And as far as I can tell,
[the complaining juror] was treated appropriately by the foreperson and the
other jurors, and she just, in hindsight, didn't like the verdict."
The court noted that at the end of
the chambers discussion with the complaining juror, before the verdict was
reached, she had said she would go back and deliberate, and would not be
intimidated. Further, when the jury was polled,
she stated she had voted for the guilty verdict. Finally, neither the foreperson nor the four
jurors who gave declarations disclosed any misconduct.
Applicable Law
"We review independently the
trial court's denial of a new trial motion based on alleged juror
misconduct. [Citation.] However, we will ' "accept the
trial court's credibility determinations and findings on questions of
historical fact if supported by substantial
evidence." ' " (
396.) " '[J]uror misconduct
involving the concealment of material information on voir dire raises the
presumption of prejudice,' and . . . '[t]his presumption of prejudice "
'may be rebutted by an affirmative evidentiary showing that prejudice does not
exist or by a reviewing court's examination of the entire record to determine
whether there is a reasonable probability of actual harm to the complaining
party [resulting from the misconduct] . . . .' " ' " (People
v. Carter (2005) 36 Cal.4th 1114, 1208; see also People v. Williams (2006) 40 Cal.4th 287, 334; In re Hamilton (1999) 20 Cal.4th 273, 296; In re Carpenter (1995) 9 Cal.4th 634, 653; In re Hitchings (1993) 6 Cal.4th 97, 119 (Hitchings).)
A unanimous verdict is not readily
set aside; rather, the likelihood of bias must be substantial
" 'The criminal justice system must not be rendered impotent
in quest of an ever-elusive perfection.
The jury system is fundamentally human, which is both a strength and a
weakness. [Citation.] Jurors are not automatons. They are imbued with human frailties as well
as virtues. If the system is to function
at all, we must tolerate a certain amount of imperfection short of actual
bias. To demand theoretical perfection
from every juror during the course of a trial is unrealistic.' " (People
v. Danks (2004) 32 Cal.4th 269, 304, quoting Carpenter, supra, 9
Cal.4th at pp. 654-655.)
Here, as set forth in detail above,
the court investigated the claim of juror intimidation and inquired of the
foreperson whether the jurors were deliberating. The court made a credibility determination,
and was entitled to believe the foreperson's assertion the jurors were
deliberating and no juror intimidated the complaining juror. We defer to the trial court's finding that no
jury misconduct occurred because it was
supported by sufficient evidence.
IV.
Based on
the foregoing contentions, Pappas argues the trial court committed cumulative
error. In a close case, the cumulative
effect of multiple errors may be sufficient to cause the trial to have been
unfair and hence cause a miscarriage of justice. (People
v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds by
415.) Multiple errors may require
reversal even when the errors, considered individually, would not warrant the
same conclusion. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1681.) If, in the absence of the cumulative errors,
it is reasonably probable that the jury would have reached a result more
favorable to a defendant, the decision must be reversed. (People
v. Holt (1984) 37 Cal.3d 436, 459, superseded by statute on another ground
as stated in People v Muldrow (1988)
202 Cal.App.3d 636, 645.) As noted, we
have found no instructional error, or prosecutorial or juror misconduct;
therefore, there are no errors to cumulate.
V.
Pappas contends the trial court improperly doubled the
sentence on the second degree conviction based on his prior juvenile
adjudication. He concedes the California
Supreme Court has ruled adversely to his position in People v. Nguyen (2009) 46 Cal.4th 1007, and that we are bound by
that opinion (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455); nonetheless, he raises the issue
to preserve it for review in federal court.
Relying on the above cited California Supreme Court authority, we reject
this contention.
DISPOSITION
The
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] The court granted Pappas's separate
request to instruct the jury with a special instruction stating in part,
"You may consider the evidence that Mr. Pappas has previously been
arrested and charged with drinking and driving for the limited purpose of
determining whether Mr. Pappas learned from that experience that the natural
consequences of that conduct are dangerous to human life or[,] phrased in a
different way, that there was a high probability that the conduct would result
in death."
