Filed 6/18/26 P. v. Wang CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085319
Plaintiff and Respondent,
v. (Super. Ct. No. SCD301835)
XINLIANG WANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Aaron H. Katz, Judge. Affirmed.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A.
Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Xinliang Wang of child abuse (Pen. Code, § 273a,
subd. (a); count 1), driving under the influence of alcohol (Veh. Code,
§ 23152(a); count 2), and driving while having a measurable blood alcohol
(Veh. Code, § 23152(b); count 3) and found true a special allegation that a
passenger in Wang’s car was a minor under the age of 14 at the time of the
offense (Veh. Code, § 23572(a)).
Wang contends the prosecutor erred during closing arguments by
referencing evidence outside the record regarding (1) the identity of the
driver and (2) a witness’s possible motive to lie. Because the prosecutor did
not reference outside evidence but instead directed the jury to reasonable
inferences drawable from the evidence presented, we find no error and affirm.
I.
On February 5, 2023, after six or seven hours drinking and socializing,
Wang left a restaurant around 1:00 a.m. with his girlfriend Huy Jiang and
Jiang’s five-year-old child.
On the way home, on a straightaway portion of the road, Wang’s car hit
an occupied parked car, pushing the parked car approximately eight to ten
feet. Wang’s car landed on the driver’s side. The occupants of the parked car
testified Wang was in the driver’s seat and a woman was the passenger.
Both occupants of the parked car filed lawsuits against Wang. One
acknowledged the civil case would benefit if the driver of the other car was
drunk when it hit their parked car.
When police arrived, Wang, Jiang, and the child were already outside
their car. The officer who interviewed Wang testified that when he asked if
Wang was driving, Wang said, “[Y]es.” The body worn camera footage of
their exchange was played for the jury.
Wang stipulated his blood alcohol level was 0.14 percent about an hour
after the crash. The People’s intoxication expert testified that driving is a
divided attention task impaired by alcohol. Alcohol use can cause tunnel
vision—focusing only on objects in front of you—leading to the potential for
missing hazards in the periphery. According to the intoxication expert, a
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person with a blood alcohol content of .10 may be unable to maintain their
lane, judge speed, or react quickly to changing hazards.
Hong Chen, an owner of the restaurant at which Wang had been
drinking before the car crash, testified in Wang’s defense. Before leaving the
restaurant, Chen helped Wang into the passenger seat of Wang’s car and
watched Jiang get behind the wheel and drive away. On cross-examination,
Chen testified his restaurant had a liquor license that was renewed annually,
and he wanted the restaurant to be able to sell alcohol to boost profits.
Wang also testified. After getting drunk, he did not remember getting
into his car, and he dozed off once inside. He awoke on top of Jiang, who was
wearing a seatbelt. Bystanders helped Jiang out of the car, and Wang got out
last. He did not remember telling the officer he was driving, and he did not
think he did. He denied driving his car and told the jury the police did not
ask him who the driver was.
II.
Wang argues the prosecutor engaged in two instances of “misconduct”
during closing arguments by introducing facts that were not in evidence. We
consider whether there was any prosecutorial error because the term
“misconduct” suggests an act with “‘a culpable state of mind’” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667), and that is not alleged here.
It is prosecutorial error to go beyond the record. (People v. Fayed
(2020) 9 Cal.5th 147, 204.) “Prosecutors have wide latitude to discuss and
draw inferences from the evidence at trial.” (People v. Lucas (1995)
12 Cal.4th 415, 473.) Argument is proper if it comments fairly on the
evidence, including any reasonable inferences or deductions. (People v. Ward
(2005) 36 Cal.4th 186, 215.)
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A.
The People contend Wang forfeited his claims of prosecutorial error
because he did not object below. To preserve a prosecutorial error claim, the
defendant “‘must make a timely and specific objection and ask the trial court
to admonish the jury to disregard the improper argument’” unless doing so
would be futile. (People v. Linton (2013) 56 Cal.4th 1146, 1205.) Because
objecting would have been futile, Wang contends forfeiture does not apply
and asks us to reach the merits.
Before closing arguments, the trial court stated: “I am not a big fan of,
‘Objection. Misstates the testimony or misstates the evidence.’ That’s not to
suggest that I’m going to—if you feel the need to object, go ahead. But my
response is going to be to tell the jury they’re the judges of the facts, and
they’ll determine what the facts are. Okay. So rarely—unless it’s something
blatant—will I say I sustain an objection. I’ll just refer it back to the jurors.
So I just prefer you not use that objection. But, again, that’s up to you.”
Although the court did not prohibit counsel from objecting to
misstatements of fact or evidence, its comments nonetheless sent the
message the attorneys should not object on that basis. Under these
circumstances, we conclude the issue was not forfeited, and we consider
Wang’s arguments on their merits.
B.
1.
The prosecutor identified a key issue as whether Wang was the driver.
She reminded the jury that the occupants of the parked car saw Wang in the
driver’s seat and that Wang told the police officer he was driving. The
prosecutor also reviewed the intoxication expert’s testimony that driving is a
divided attention task and alcohol diminishes a person’s ability to conduct
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such tasks. She referenced the expert’s testimony that intoxicated “people
tend to get . . . tunnel vision.” This mattered, the prosecutor explained,
because Wang was driving on a straight road, with no turns or curves, when
he hit a parked car.
Then the prosecutor argued: “[W]hen we have two opposing stories, one
that a person is drunk and under the influence and one that a person is sober
and both of those people are now claiming to have been the driver, members
of the jury, you can use the circumstantial evidence of what happened in this
collision. The fact that the collision happened at all to figure out who the
driver was. Was this an action of a sober person? Absolutely not.”
2.
Wang argues these statements are prosecutorial error because no one
at the scene other than Wang claimed to be the driver, and the expert did not
testify “that only an impaired driver would strike a car parked on a
straightaway road.” He also contends there was no evidence about the point
at which the driver entered the straight portion of the road or the possible
visual impact of a shopping center across the street from the parked car.
Wang claims the prosecutor’s argument was based on these missing facts.
We disagree.
The prosecutor’s argument did not rely on the evidence outside the
record identified by Wang. Instead, it pointed to a permissible inference from
the evidence presented. Wang stipulated he was under the influence of
alcohol, and the intoxication expert testified that alcohol impairs divided
attention tasks like driving. The accident occurred on a straight part of the
road, where peripheral objects would be visible. From this evidence, a
reasonable inference is that an intoxicated driver—Wang—was more likely to
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hit a parked car than a sober one. Because the identity of the driver of
Wang’s car was the critical issue at trial, we see nothing improper here.
We find no prosecutorial error in this argument.
C.
Wang contends the prosecutor improperly asserted Chen had a motive
to lie because he risked losing his liquor license for overserving Wang.
Without testimony that Chen was aware of a law that made him liable for
overserving a customer who was then involved in an accident, Wang argues it
was improper to challenge Chen’s credibility by discussing possible motives
for lying.
We conclude the prosecutor’s argument simply provided the jury with a
reasonable inference that could be drawn from the evidence presented. The
prosecutor compared the possible biases of witnesses who provided
contradictory testimony about the driver’s identity. She reminded the jury
that Chen was a restaurant owner who had a liquor license that had to be
renewed annually to ensure restaurant profits, all facts to which Chen
testified. Then, the prosecutor explained the possible significance of those
facts: “[Chen] had to renew it every year. Financially he had to renew it. His
business had to renew it. He saw someone who was overserved. Who was
overly intoxicated getting into a car and then now knows that there’s a
collision. What does that have to play into his restaurant business? Well,
that opens him up to liability. For over[]serving someone who causes a
collision.”
We see no error in this approach, and Wang does not explain why this
argument was unsupported by or could not be inferred from the evidence that
was presented.
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III.
We affirm.
CASTILLO, J.
WE CONCUR:
DO, Acting P. J.
BUCHANAN, J.
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