Filed 8/8/17 P. v. Miranda CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO JAVIER MIRANDA,

Defendant and Appellant.
H043198
(Monterey County
Super. Ct. No. SS132654A)
Defendant Francisco Javier Miranda, Jr., was the driver of a 2004 Ford Taurus that struck two women, Cynthia Lee Lane and Linda Rascon Williams, killing them. Following a jury trial, defendant was convicted of seven offenses. Multiple allegations were found true.
On appeal, defendant challenges the sufficiency of the evidence to support his murder convictions (§ 187, subd. (a)) (counts 1 & 2) and his convictions of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) (counts 3 & 4). He also asserts that the conviction of causing bodily injury while driving under the influence (Veh. Code, § 23153) (count 5), upon which the trial court stayed punishment, must be reversed because it is a lesser included offense of gross vehicular manslaughter while intoxicated (counts 3 & 4).
We find defendant’s contentions to be without merit and affirm the judgment.
I
Procedural History
By information, defendant was charged with committing the following crimes on or about November 20, 2013: (1) murder of Lane (§ 187, subd. (a)) (count 1); (2) murder of Williams (§ 187, subd.(a)) (count 2); (3) gross vehicular manslaughter while intoxicated for the killing of Lane (§ 191.5, subd. (a)) (count 3), (4) gross vehicular manslaughter while intoxicated for the killing of Williams (§ 191.5, subd. (a)) (count 4); (5) causing great bodily injury while driving under the influence with two priors (Veh. Code, §§ 23153, subd. (a), 23566, subd. (b)) (count 5); hit and run resulting in injury (Veh. Code, § 20001, subd. (a)) (count 6); and (7) misdemeanor driving when privilege suspended for a prior driving under the influence (DUI) conviction (Veh. Code, § 14601.2, subd. (a)) (count 7).
The information further alleged as to counts 3 and 4 that (1) defendant had suffered two prior convictions (Veh. Code, § 23152, subds. (a) & (b)) within the meaning of Vehicle Code sections 23540 and 23546 and that (2) after committing a violation of section 191.5, subdivision (a), defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)). It also alleged as to count 5 that defendant personally inflicted great bodily injury upon both Lane and Williams, not accomplices, within the meaning of section 12022.7, subdivision (a), and that defendant proximately caused bodily injury and death to Lane and Williams (Veh. Code, § 23558 [multiple victim enhancement]).
Following a trial, the jury found defendant guilty of all counts, and it found true all allegations.
On January 14, 2014, the trial court sentenced defendant in this case and two other cases.
II
Discussion
A. Sufficiency of the Evidence
On appeal, defendant’s principal arguments concern the sufficiency of the evidence to support four of the convictions, namely the two murder convictions and the two gross vehicular manslaughter while intoxicated convictions (counts 1 to 4).
1. Standard of Review
In considering a sufficiency of the evidence claim, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).)
“A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” (Lindberg, supra, 45 Cal.4th at p. 27.) “[E]ven though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant’s innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.] Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Towler (1982) 31 Cal.3d 105, 118-119.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (Lindberg, supra, at p. 27.)
2. Evidence
The evidence viewed in the light most favorable to the judgment shows the following.
Defendant’s Use of Marijuana before the Collision
At the time of trial, defendant had been smoking cannabis for over a decade, and he was 25 years old. By his own account, he smoked a lot. He admitted that he had tried “wax,” a highly concentrated form of cannabis that was “like hash,” the day before the collision. He acknowledged that he smoked “hash” as well as using ordinary marijuana or “edibles.”
On November 20, 2013, defendant was driving a white 2004 Ford Taurus. There was evidence that defendant had smoked marijuana at various times during the day.
In the afternoon, defendant drove to the home of Maria R., who went by the name Mary (Mary), with another friend, Patricia S. Before the three of them left, they smoked two bowls of marijuana in a pipe, later found in defendant’s car.
Sometime between about 6:00 and 7:00 p.m., defendant, Patricia, Mary, two males who joined them at some point, smoked marijuana in defendant’s car, which was parked in the parking lot of Patricia’s apartment complex on East Rossi in Salinas. They were “hot-boxing,” which is smoking in a car with the doors closed and the windows rolled up tight so that “the car gets full of smoke” to create “a better high.” They had smoked two pipe bowls of marijuana before the two males joined them. After the males joined them, they smoked a marijuana “blunt,” which is “a little larger than a joint.” Mary had smoked a lot of “blunts” with defendant over the years. A joint was passed around as well. Mary felt high.
The two male occupants left defendant’s car, and it was decided that defendant would drive Mary home. Defendant exited the parking lot and drove down Rossi, went to Natividad, and turned right from Natividad onto East Laurel and headed eastbound on East Laurel toward Constitution. At that time, both defendant and Patricia were “high.”
Victim Lane Leaves the Medical Center’s Grounds Followed by Security Guards
On November 20, 2013, Moises M. was a security officer, who was employed by First Alarm and working at Natividad Medical Center as the evening shift supervisor. From his office, Moises could see “the ER lobby.” He first saw Lane, a female patient who had been released from the emergency department, in the lobby unsuccessfully attempting to make a telephone call. She was “hitting the phone against the wall” when Moises made contact with her at approximately 6:00 p.m. He “dialed” a number for her, but nobody answered. Moises returned to his office and continued to observe Lane, who was pacing and sitting next to visitors and patients, whom she was making uncomfortable. He called First Alarm dispatch to contact the police. When Lane exited the building and began walking, Moises continued to observe her from a distance so that he could inform police of her whereabouts. He was concerned about her welfare.
On November 20, 2013, Bani G. was employed as a security guard by First Alarm, and he worked at Natividad Medical Center. From 6:00 p.m. to 7:00 p.m. that night, Bani was stationed inside the emergency department. After Bani left the emergency department, Moises directed his attention to a female, whom they watched and followed. At one point, the woman unsuccessfully tried to enter a hospital building, and she eventually walked through a hospital parking lot and headed toward the sidewalk on East Laurel.
Moises and Bani followed the woman from a distance to make sure that she did not wander into the street. They received a radio communication from Williams, another security guard with whom they worked, informing them that Lane had left behind her belongings. They tried to yell that information to Lane who was approximately 20 to 30 feet away, but Lane ignored them. Williams was coming toward them with Lane’s backpack.
The Collision
Williams reached Bani and Moises. Lane began walking across East Laurel Drive’s westbound lanes and into the right-most, left-turn lane on eastbound East Laurel Drive before the intersection with Constitution Boulevard. Moises directed Williams to call the “Salinas PD” because Lane was obstructing traffic, and Williams began to do so.
While the vehicles in the left-hand turn lanes were stopped at the red light, Lane tried to get into a SUV or van that was in the right-most, left-turn lane. When the traffic signal for the left-turn lanes turned green and the vehicle began moving, Lane fell to the ground.
When Williams saw that Lane was on the ground, she ran out to the street to Lane. Bani ran after her. Williams, who was in her security guard jacket, squatted or kneeled down and spoke to and attempted to assist Lane.
Initially, all traffic in the eastbound lanes of East Laurel was stopped. Moises contacted hospital communications and requested assistance from the “ER staff, AMR [American Medical Response, and] Salinas PD.”
Bani, who was wearing a security guard uniform and had a radio in a holster on his waistband, began using hand signals to direct traffic out of the number one lane. There was traffic in lane number one coming toward him about two car lengths away. Bani did not have a flashlight. It was dark out. Nevertheless, the approaching vehicles followed his directions. The vehicles were going around Bani and the victims and either stopping on the right shoulder or slowly going through the intersection in the right-most lane when the light was green.
Bani then saw a car coming toward him eastbound on East Laurel, but it was not slowing down. The car’s headlights were on, and it was approaching quickly. There was nothing obstructing Bani’s view of the car. He was standing in the lane and trying to direct the car into the other eastbound lane. But the car did not move over or slow down. He started panicking, and he loudly told Williams, “We need to move. We need to move. The car’s not slowing down.”
Bani stepped out of the way to avoid being hit. The car did not apply its brakes. The car struck Williams and ran over Lane. The impact threw Williams. Bani called 911 on his cell phone.
A number of persons in the left turn lanes on East Laurel Drive testified to the aspects of the incident that they had witnessed. On November 20, 2013, Sandra E., who was driving, and her husband Robert, who was sitting in the front passenger seat, were traveling eastbound on East Laurel Drive. Sandra drove into the left-most, left-turn lane and stopped at the red light. They saw Lane pound or knock on the passenger side of an SUV or minivan that was ahead of them in the right-most, left-turn lane. The traffic lights turned green, the SUV or van moved forward, and Lane fell to the ground in the intersection. Robert called 911 on his wife’s cell phone. Subsequently, they saw two people run toward the woman on the ground; one of them was kneeling or squatting down to render aid. Sandra saw a tall, male security guard standing beside them.
While still on the phone, Robert witnessed a car “slamming” into the individual rendering aid and “the body flying.” Sandra “saw bright lights” and heard “a huge ‘whack’ sound.” Robert did not see the car apply any brakes. Sandra got out of the car and ran to help; she and another bystander performed CPR on Williams. Robert, who was a firefighter, got off the phone and went to check Lane; he saw severe lacerations. Sandra continued CPR until the ambulance personnel arrived.
Gregory F., who was driving eastbound on East Laurel Drive in lane number two, was making his way slowly to the right-most, left-turn lane when he noticed “there was more congestion than usual” and “there were people in the street” near the intersection of East Laurel Drive and Constitution. In the right-most, left-turn lane, Gregory drove past a woman who was down in the roadway. While he was coming to a stop, a second woman came from the sidewalk and crossed in front of his car. Gregory instinctively hit his brakes. She was illuminated by his car’s headlights and the second woman was moving toward the first woman. The two women were then about a car’s length behind him in the number one lane of eastbound East Laurel Drive.
In his passenger-side mirror, Gregory saw headlights approaching eastbound on East Laurel. There was nothing impeding his vision of the approaching vehicle. It was “pretty far away,” and he “thought it was going to slow down” but it did not. He saw the vehicle strike the two women and felt his vehicle rock back and forth. He saw the vehicle drive through the intersection and pull off to the side and stop. Gregory drove through the intersection and pulled over; he then called 911. He told the 911 operator that when he was pulling into the turning lane he saw someone already down in the street and that a vehicle coming down Laurel at a high rate of speed hit a responder. While he was still on the 911 call, Gregory saw a heavy set man get out of the driver’s side of the vehicle involved in the collision and saw him jog toward the intersection and then return to the vehicle and drive away.
Carl P. was driving on East Laurel Drive after dark on November 20, 2013, and he noticed it was very busy. After stopping in the left-most, left-turn lane, and while waiting for the light to change, Carl saw a woman go to the passenger side of a vehicle that was in the right-most, left-turn lane and two or three car lengths in front of him and try to get in. After the woman fell to the ground, two security guards responded to assist her and direct traffic. Carl saw “a flash go by” him and “heard a double thump.”
At about 7:00 p.m. on November 20, 2013, Olivia B. was driving eastbound on East Laurel Drive toward Constitution Boulevard in lane number two, the right-most lane. She moved over into the right-most, left-turn lane where traffic was stopping. Approximately three or four car lengths in front of her, Olivia saw two people running from the sidewalk and across the westbound lanes of East Laurel Drive. One of them approached a person on the ground and tried to give assistance. She remembered seeing someone standing. When she turned back “to see if there was traffic coming,” she saw a white sedan approaching. No cars were traveling in front of it. The sedan struck the women and continued through the intersection.
After dark on the evening of November 20, 2013, Nick R. was driving home and traveling eastbound on East Laurel Drive. He came to a stop in the right-most, left turn lane of eastbound East Laurel; the lights were red. “[A]pproximately three or four cars” were in front of him, and cars stopped behind him. As he was waiting to turn left onto Constitution Boulevard, Nick saw, in front and to the right of his vehicle, a woman on the ground, and a second woman attempting to help her up. Within seconds of his observation, a car hit the second woman and “plowed over” the first woman. Nick did not hear any sound of brakes being applied. He pulled his car out to the side to block traffic so the victims would not be hit again. Other cars did the same thing to block the lane.
Patricia, who was sitting in the backseat of defendant’s car at the time of the collision, testified regarding her perceptions from that vantage point. Patricia recalled seeing something in the roadway, which looked like “a big black ball” in lane number one. When defendant’s car was approximately 14 to 16 feet from the object, she could see a person directly in front of the car. When they were about four feet away from the person, Patricia saw a woman shielding her face and looking into the headlights of defendant’s car. Defendant’s vehicle struck the woman without defendant ever applying his brakes. Patricia “felt a body roll under the car,” and she “kind of heard the bones crack.”
Various witnesses estimated the speed of defendant’s car before it struck Williams and Lane to be between 45 to 65 miles per hour (MPH).
Defendant pulled his car over and stopped beyond the Constitution Boulevard intersection, and everyone got out. Defendant briefly jogged over toward the intersection to see what had happened. Patricia saw that two people had been hit. There was blood everywhere, and she could tell they were dead. Patricia took off. Mary grabbed her bag, and started to walk home. Defendant returned to his vehicle and drove away. He had not given the name or address of the registered owner, his mother, or shown his driver’s license to anybody.
Moises saw a white sedan leaving the scene of the collision at approximately 60 to 65 MPH. He stood by Williams as CPR was performed on her. People came out of their vehicles to assist.
Patricia walked to the nearby hospital, where she called her brother and asked him to pick her up. She also called defendant’s mother and asked her to come to the scene.
At trial, defendant testified that, before striking the victims with his car, he made a right onto Laurel heading toward Constitution and that he noticed that there were a lot of cars in the left turn lanes. He noticed “a long line of cars” and “for some reason they stayed there.” He was wondering why there were so many cars stopped in the left-turn lanes. Defendant’s vehicle was traveling in lane number one on eastbound East Laurel, and defendant had a clear line of sight. After he struck something, Patricia told him that he had hit someone. He acknowledged driving away from the scene of collision and subsequently receiving a telephone call from his mother telling him to return.
Investigation
A police dispatch about the collision went out at approximately 7:12 p.m. on November 20, 2013.
On November 20, 2013, Pedro Gomez, a Salina police officer, was on duty when he heard a call regarding a vehicle-pedestrian accident. He arrived at the intersection of East Laurel and Constitution Boulevard at 7:15 p.m. He was one of the crime scene investigators, and, at trial, he described the photographs taken of the scene after the collision.
Ciro Barboza, a Salinas police officer, also heard the dispatch regarding the vehicle-pedestrian accident. When he arrived at the scene at approximately 7:19 p.m., other officers had already blocked off the intersection of East Laurel and Constitution and both victims had been transported to the hospital. He spoke with defendant’s mother, who told him that her son’s girlfriend had called her about a possible accident. Officer Barboza asked her to make a call, and defendant returned to the scene subsequent to receiving a call from his mother telling him to come back. Defendant’s mother pointed out defendant’s vehicle as it was approaching; the time was approximately 7:45 p.m.
When defendant stepped out of his car, Officer Barboza noticed the odor of marijuana coming from the vehicle and from his person. Defendant gave a brief statement to the officer, indicating that he briefly stopped after he thought he had hit a box, but he got back in his car and drove away because he did not see anybody injured.
Jeff Munoz, a Salinas police officer and the primary investigator in this case, arrived at the scene of the collision at approximately 8:22 p.m. Officer Munoz took measurements and determined the area of impact where the two victims had been struck on East Laurel. He saw no skid marks approaching or near the area of impact. In his opinion, the cause of the collision was defendant’s driving under the influence of marijuana together with driving at a speed unsafe for the conditions. Some vehicles preceding defendant’s car had pulled to the side of the roadway and stopped; others had proceeded at a slower pace in the number two “through-lane.” According to the officer, the safe speed while persons were in the roadway was zero.
Richard Diaz, a Salinas police officer and a trained traffic investigator, responded to the intersection of East Laurel Drive and Constitution Boulevard at approximately 8:45 p.m. on November 20, 2013. The posted speed limit for eastbound and westbound traffic on East Laurel Drive was 45 MPH. Officer Diaz found no skid marks in lane number one of eastbound East Laurel. At trial, he explained to the jury that the basic speed law set forth in Vehicle Code section 22350 prohibits drivers from driving faster than is reasonably safe for prevailing conditions regardless of the posted speed limit.
Michael Muscutt, a Salinas police officer, was on duty on November 20, 2013 and heard the dispatch call concerning the incident. He arrived at the intersection of East Laurel and Constitution at approximately 8:30 p.m. He had been asked to assist Officer Barboza in safely transporting defendant to the California Highway Patrol (CHP) office in Salinas. Officer Barboza transported defendant to the CHP office at approximately 8:39 p.m.
At the CHP office, Officer Muscutt advised defendant of his Miranda rights. (See Miranda v. Arizona (1966) 384 U.S. 436.) Defendant admitted that he was operating the vehicle in question, later determined to be a 2004 Ford Taurus. Defendant admitted to Officer Muscutt that he had consumed marijuana, “a blunt,” at 4:30 p.m. that afternoon. Defendant indicated that he was 5 feet, 7 inches tall and weighed approximately 340 pounds. Officer Muscutt smelled a faint odor of marijuana coming from defendant’s person and noticed that defendant’s eyes were glassy and a little bloodshot in the inner corners. Officer Muscutt administered standardized field sobriety tests. At the trial, the officer described the tests and defendant’s performance, and he testified that in his opinion, defendant was under the influence of a controlled substance. Officer Muscutt placed defendant under arrest for felony driving under the influence.
A CHP officer administered two breath tests to defendant; the results showed that defendant had no alcohol in his system. CHP Officer Michael Orta, a certified DRE (drug recognition expert or evaluator), conducted further tests and took defendant’s blood pressure and pulse. Defendant’s blood pressure was 180 over 94, which was a little higher than normal. When asked whether he had ingested marijuana that evening, defendant told Officer Orta that he had split “a blunt” with other people.
Officer Orta advised Officer Muscutt that in his opinion, defendant was under the influence of THC or marijuana. Officer Muscutt transported defendant to Natividad Medical Center where his blood was drawn at 11:20 p.m. on November 20, 2013
Sometime after 11:00 p.m., Officer Munoz spoke with defendant at the Salinas Police Department. Defendant indicated that he had smoked a blunt at about 3:00 or 4:00 o’clock in the afternoon. Defendant indicated that the lighting at the intersection where the collision occurred had been good. He acknowledged that he had been admonished by a judge not to drive with a drug in his system because of the inherent danger and that he understood that he was not supposed to “smoke weed and drive.” Defendant claimed that he had not seen anyone in the road before the collision, and at one point he said that he thought he had hit a box. When Officer Munoz asked what defendant “was thinking when he ran over the two ladies,” defendant replied that he was hoping they were okay.
On December 4, 2013, Patrick Haney, a Salinas police officer and criminalist, took photographs of defendant’s car, which was in a “secured evidence storage facility.” In the car, he found a black plastic bindle containing marijuana on the rear seat, a small amount of marijuana in the ashtray, a glass tobacco smoking pipe in the glove box, a plastic bindle containing marijuana wrapped in a store receipt and marijuana wrapped in tissue paper in the map pocket of the front passenger side door, and a cigarette paper roller.
On December 4, 2013, William Milward, a CHP officer, performed a mechanical inspection of defendant’s vehicle, a 2004 Ford Taurus. He found indentations or dents consistent with a pedestrian being struck. The vehicle’s headlights worked. Although Officer Milward found that the vehicle was poorly maintained, he found that the vehicle had no pre-collision conditions that were a contributing factor to the collision.
Driving Under the Influence
Timothy Appel, a criminalist with the California Department of Justice’s toxicology laboratory in Sacramento, testified for the prosecution that the use of marijuana slows the brain’s processing and registering of information and the perception of time, it delays a person’s reaction time, it affects a person’s peripheral vision, and it impairs a person’s motor skills, coordination, and ability to perform multiple tasks at the same time. Marijuana use by a chronic or experienced user will still cause a slowing of his reaction times and adversely affect his tracking ability, memory, perceptions, even though he may have developed a tolerance for the drug that results in less of a sedative effect. Using marijuana usually causes increases in blood pressure above the normal range, and high normal is 140 over 80. The “peak effects” of smoking marijuana last for about an hour and a half to two hours.
Appel analyzed defendant’s blood sample. His analysis showed that defendant had a concentration of 5.3 nanograms per milliliter of tetrahydrocannabinol or TCH and 2.8 nanograms per milliliter of hydroxyl-TCH, an active metabolite. Defendant’s specimen had a concentration of carboxy-TCH, an inactive metabolite, of greater than 200 nanograms per milliliter. The hydroxyl-THC results indicated that defendant had used marijuana within the previous 24 hours. The level of carboxy-TCH indicated that defendant had consumed marijuana and that he was a regular user. Based upon the fact that defendant’s blood had a higher concentration of THC than the hydroxyl-TCH, Appel opined that the marijuana had been smoked rather than orally ingested. Appel indicated that studies had not been able to determine a specific level of THC that makes a person too impaired to drive.
Nevertheless, it was Appel’s opinion, based upon hypothetical facts consistent with evidence presented at trial, that defendant was under the influence of, and impaired by, marijuana and that it was not safe for defendant to have been driving. Defendant’s failure to perceive anyone on the roadway and his failure to apply his brakes at all or make any move to avoid hitting the women was indicative that his marijuana use had caused “brain process interference.”
Officer Muscutt testified that studies show that it normally takes .75 seconds to perceive something and another .75 seconds to react. THC lengthens a person’s “perception-reaction time.”
Defendant’s expert acknowledged that even chronic users can be impaired by THC.
Defendant’s Awareness of Danger Posed by Driving under the Influence
Defendant had two DUI convictions in 2013, both involving alcohol. The transcript of defendant’s plea in case No. MS310072A disclosed that on February 14, 2013 defendant was advised that being under the influence of any amount of alcohol or drugs impairs his ability to safely operate a motor vehicle and that driving while under the influence of any amount of alcohol or drugs is extremely dangerous to human life. He was also told by the judge that he could be charged with murder if he continued to drive under the influence and killed someone as a result, and defendant indicated that he understood.
A transcript in case No. MS311894A reflected that on April 23, 2013, defendant was told by another judge that driving under influence of alcohol or drugs is inherently dangerous and that he could be charged with murder if, in the future, he drove under the influence of alcohol and/or drugs and someone was killed in an accident. Defendant indicated that he understood.
Defendant’s DMV driver’s record indicated that, on March 27, 2013, defendant had been notified in person that his driver’s license was suspended due to one or more DUI convictions. Defendant was notified in writing by letter sent to his address on June 13, 2013 that his driver’s license was suspended for two DUI convictions.
On November 20, 2013, defendant’s was driving with a suspended driver’s license.
Cause of Deaths
On November 22, 2013, Dr. Venus Azar, a forensic pathologist, performed autopsies on Lane and Williams. Lane suffered extensive blunt force trauma, including crushing type injuries that were consistent with a car running over her body. Lane’s cause of death was multiple blunt-force injuries. Lane’s “ethyl alcohol level was 0.25 grams percent.” Williams also suffered multiple blunt-force injuries, which were consistent with being hit by a vehicle. Multiple blunt-force injuries were the cause of Williams’s death. Both Williams and Lane suffered injuries that were inconsistent with a low rate of speed. Some of Lane’s injuries were consistent only with “a high impact speed.”
3. Second Degree Murder Based on Implied Malice
Defendant contends that the evidence is insufficient as a matter of law to prove implied malice. He argues that the evidence brakes down into four categories: (1) the collision, (2) the timing and amount of marijuana ingested, (3) expert testimony regarding the impact of marijuana ingestion, and (4) his performance on the field sobriety tests. Defendant asserts that “the crux of the issue framed in this case is whether [his] failure to see [Bani] and Williams . . . showed sufficient impairment to prove [he] acted with conscious disregard.”
“Malice is implied when the killing is proximately caused by ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ [Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 143.) Thus, “malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]” (People v. Watson (1981) 30 Cal.3d 290, 296 (Watson).) “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Id. at pp. 296-297.)
Thus, “[t]he concept of implied malice has both a physical and a mental component. [Citation.]” “The physical component is satisfied by the performance of ‘ “an act, the natural consequences of which are dangerous to life.” ’ [Citation.] The mental component . . . involves an act ‘ “deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life . . . .” ’ [Citation.]” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.)
In this case, there was evidence that marijuana impairs the ability of a person, even someone who regularly uses marijuana, to drive in various ways, including by impairing the person’s perceptions, his processing of information, his reaction time, and his ability to attend to multiple tasks while driving. The evidence that defendant had smoked marijuana with others in his car not long before driving and colliding with the victims, the evidence of his blood test results, and criminalist Appel’s testimony regarding those results were sufficient to support a finding that defendant had ingested marijuana shortly before driving his car and striking two persons in the roadway.
There was evidence that, in the moments before the collision while driving, other drivers eastbound on East Laurel Drive had seen the male security guard directing traffic away from William and Lane and responded by changing lanes. But defendant entirely failed to respond to the male security guard’s attempts to make him change lanes. He failed to slow down, apply his brakes, or take evasive measures before striking the victims, with fatal results. The jury could reasonably infer from those failures, when considered in light of the ability of other drivers to respond to the security guard directing traffic, that defendant’s driving was impaired due to marijuana consumption. A number of witnesses had concluded that defendant had driven under the influence of marijuana. Thus, there was sufficient evidence from which the triers of fact could reasonably infer that defendant’s driving had been critically impaired by his recent use of marijuana such that he had been driving under the influence of marijuana.
There was also circumstantial evidence from which the triers of fact could reasonably infer that defendant was subjectively aware of the risk to human life posed by driving while under the influence of marijuana, and, despite that awareness, he drove under the influence of marijuana. That circumstantial evidence included evidence of defendant’s past DUI convictions, the judicial warnings that driving under the influence of alcohol or drugs was extremely dangerous to human life and that, if he killed someone while driving under the influence of alcohol or drugs, he could be charged with murder, the suspension of his driver’s license suspension due to his DUI convictions, defendant’s regular use of marijuana, and the impairments resulting from marijuana use, even for someone who is a regular marijuana user. Defendant conceded to Officer Munoz that he understood from Judge Hayes’s admonishment that he was not supposed to “smoke weed and drive.” Accordingly, there was sufficient evidence to support the jury’s implicit finding that defendant had acted with implied malice the jury’s verdicts finding defendant guilty of murder (counts 1 & 2).
Defendant asserts that the testimony regarding the timing and amount of his marijuana use was in substantial conflict and that the field sobriety tests were not sufficient to draw any inferences about his level of impairment, especially in view of his obesity and poor physical condition. Defendant suggests that his size and poor physical condition could have contributed to his performance on the field sobriety tests and that “the evidence did not reflect the kind of gross impairment consistent with conscious disregard.”
Defendant further suggests that the jury could not infer that defendant was driving under the influence of marijuana based on the evidence that he did not see the security guards in his lane since the drivers in the left-turn lanes who testified at trial for the prosecution had a different vantage point than did he and that not all the witnesses corroborated the evidence that the male security guard had directed oncoming traffic out of lane number one. In arguing that the evidence was insufficient to establish implied malice, defendant also points to evidence suggesting there was limited visibility that night.
Defendant emphasizes the evidence showing that his past DUI convictions involved alcohol, that he understood the judicial admonitions to apply to alcohol and hard drugs but not marijuana, that he had not ingested any alcohol on the night of the collision, and that in his experience marijuana did not impair his driving. Defendant also contends that the “weight of the testimony” shows that he was not exceeding the posted speed limit of 45 MPH, although he acknowledges that there was testimony that he was driving as much as 20 MPH over that posted speed limit.
Defendant fails to mention the evidence indicating that the lighting at the intersection was good, the drivers of other vehicles in the number one lane had seen the male security guard and moved around the victims at his direction, the headlights of defendant’s car were on, and defendant had a clear line of sight of the number one eastbound lane on East Laurel Drive. He fails to acknowledge the evidence that defendant had used marijuana multiple times that day and not long before the collision and that marijuana use impairs even a regular user’s driving. The jury was free to disbelieve his testimony indicating that he was not impaired by marijuana use and that he was unaware of the risk to human life posed by driving under the influence of marijuana.
“[I]t is the jury, not the reviewing court, that resolves conflicts in the evidence. [Citation.]” (People v. Solomon (2010) 49 Cal.4th 792, 818; see CALCRIM No. 226 [Jurors are free to believe or accept all, part, or none of a witness’s testimony]; Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal.2d 480, 508 [same].) A jury may disbelieve a defendant’s self-serving statements. (See People v. Silva (2001) 25 Cal.4th 345, 369.) Regardless of the conflicts in the evidence, “[o]ur review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Even if different inferences could have been drawn from the evidence, evidentiary conflicts were for the jury to resolve. (See People v. Letner (2010) 50 Cal.4th 99, 161 162.) As we have indicated, “ ‘ “[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 933.)
The evidence was sufficient to establish the element of implied malice necessary to support defendant’s second degree murder convictions. None of the cases cited by defendant persuade us otherwise. “Reviewing the sufficiency of evidence . . . necessarily calls for analysis of the unique facts and inferences present in each case . . . .” (People v. Rundle (2008) 43 Cal.4th 76, 137-138 (Rundle), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts. [Citations.]” (People v. Thomas (1992) 2 Cal.4th 489, 516 (Thomas).) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
4. Gross Vehicular Manslaughter While Intoxicated
Defendant contends that the evidence is insufficient to support the two convictions of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). He argues that he “did not drive in an overtly reckless fashion” and that there was no “proof beyond a reasonable doubt that [he] was grossly negligent in failing to see that there were pedestrians in the street.” Defendant suggests that the “weight of the testimony from other drivers showed the area provided limited visibility, particularly from the position in which [he] approached the intersection . . . .” He maintains that the evidence “establishes that a reasonable person in [his] position would not necessarily have been aware of pedestrians on the street.”
Section 191.5, subdivision (a), states: “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.” Thus, the People may prove the intoxication element by proof that the defendant was driving with a prohibited blood alcohol concentration (BAC) or under the influence in violation of one of the specified Vehicle Code sections.
“Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. (People v. Watson (1981) 30 Cal.3d 290, 296.) ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don’t care what happens.” ’ [Citation.] The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. (People v. Watson, supra, 30 Cal.3d at p. 296.)” (People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett).) The facts need not demonstrate that defendant actually had a subjective awareness of the risk created. (See Watson, supra, at pp. 296-297.)
“ ‘The mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. [A jury] must determine gross negligence from the level of the defendant’s intoxication, the manner of driving, or other relevant aspects of the defendant’s conduct resulting in the fatal accident.’ ” (Bennett, supra, 54 Cal.3d at p. 1039, fn. omitted.)
But “a driver’s level of intoxication is an integral aspect of the ‘driving conduct.’ ” (Bennett, supra, 54 Cal.3d at p. 1038.) “A high level of intoxication sets the stage for tragedy long before the driver turns the ignition key.” (Ibid.)
“[A]ll relevant circumstances, including level of intoxication, [should be considered] to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]” (Bennett, supra, 54 Cal.3d at p. 1038.) Thus, “the finding of gross negligence required to convict a defendant of gross vehicular manslaughter while intoxicated may be based on the overall circumstances surrounding the fatality.” (Id. at p. 1040.) “Intoxication is one of those circumstances and its effect on the defendant’s driving may show gross negligence.” (Ibid.) Also, “[i]n determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1205, italics omitted.)
As discussed in the context of the murder convictions, the evidence was sufficient to prove that defendant had used marijuana not long before the collision and that he was driving under the influence of marijuana, i.e. impaired, when his car struck the victims in the roadway. In addition, as more fully explained in our analysis of the sufficiency of the evidence to support the murder convictions, the evidence was sufficient to show that defendant was aware of the risks to human life posed by driving under the influence of marijuana. In driving while under the influence of marijuana, defendant was ignoring fairly recent judicial warnings not to drive under the influence of drugs because that endangered human life.
While “a defendant’s lack of awareness does not prevent a finding of gross negligence if a reasonable person would have been aware of the dangers presented” (People v. Givan (2015) 233 Cal.App.4th 335, 346 (Givan), there was sufficient evidence in this case to support a finding that defendant was aware of the risks posed by his conduct. Moreover, even “if defendant operated his vehicle intoxicated but believed he was not impaired, the jury could still convict him for gross negligence if the jury believed a reasonable person would have appreciated the risks. [Citation.]” (Id. at pp. 347-348.) Sufficient evidence supported a conclusion that a reasonable person in defendant’s position would have been aware of the risk to human life involved in driving under the influence of marijuana. (See People v. Batchelor (2014) 229 Cal.App.4th 1102, 1110.)
Although the situation in the roadway evolved quickly, other drivers were able to perceive the situation and respond to the security guard’s directions. The evidence also supported a finding that defendant was driving as much as 20 MPH over the posted speed limit and no lower than the posted speed limit. Officer Munoz testified that zero MPH was the safe speed when persons are in the roadway. The basic speed law provides: “No 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, and in no event at a speed which endangers the safety of persons or property.” (Veh. Code, § 22350.) The jury could reasonably infer from the evidence that even the posted speed limit exceeded the maximum safe speed under the circumstances and that defendant was driving faster than the basic speed law permited.
The totality of circumstances surrounding defendant’s fatal collision with the victims included evidence of defendant’s use of marijuana not long before driving, the impairments resulting from marijuana use (including delayed perception, information processing, and reaction time), the manner in which other drivers were able to respond to male security guard’s hand signals directing traffic out of lane number one, defendant’s complete failure to perceive the security guard directing traffic, his complete failure to apply the brakes or slow or make any attempt to avoid the persons in the roadway, his unsafe driving speed for the circumstances, and the judicial warnings given only months before the collision. Thus, evidence was sufficient to support a determination that a reasonable person in defendant’s position would have been aware of the risk to human life posed by defendant’s conduct, and that defendant violated the basic speed law with gross negligence, which proximately caused the deaths of Williams and Lane.
Defendant insists that he did not act in a reckless way because he “did not weave between lanes, run a stop sign or a red light or veer into oncoming traffic.” The evidence was sufficient to allow a reasonable inference that his complete failure to perceive or respond to the situation in the roadway in front of him was the result of driving under the influence of marijuana. The jury could reasonably conclude that defendant was acting in a reckless way that created a high risk of death or great bodily injury by driving impaired to that degree by marijuana use after he had suffered two DUI convictions, had his driver’s license suspended for those convictions, and he had been twice warned by judges to not drive under the influence of drugs because of the danger to human life.
In arguing insufficiency of the evidence to prove gross negligence, defendant again argues that the evidence of when and how much he smoked was in conflict and that his previous DUI convictions did not involve marijuana. He asserts that the evidence showed that it was dark, there was limited visibility, and there was no car ahead of him in lane number one that suddenly braked or swerved, which would have alerted him to a problem on the road. He contends that “the most tha[t] can fairly be said of [his] condition at the time of the accident was that there may have been some degree of impairment” and that “ ‘some’ degree of impairment is not enough to establish gross negligence.”
We find no merit in those contentions. We reiterate: “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.]” (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young); see People v. Rodriguez (1999) 20 Cal.4th 1, 13-14 [appellate fact finding improper].) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (Young, supra, at p. 1181.) “Even if we might have made contrary factual findings or drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.)
Defendant cites a number of cases, asserting that they involve more egregious facts than the circumstances of this case. As indicated, the facts of other cases are not particularly useful in reviewing the sufficiency of the evidence in this case. (See Rundle, supra, 43 Cal.4th at p. 137; Thomas , supra, 2 Cal.4th at p. 516.) “In reviewing sufficiency of evidence claims, each case of necessity must turn on its own particular facts. [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 745.)
The evidence was sufficient to support the convictions of gross vehicular manslaughter while intoxicated (counts 3 and 4).
B. Count 5 is Not a Lesser Included Offense of Counts 3 and 4
Defendant asserts that count 5 (causing bodily injury while driving under the influence) was a lesser included offense of counts 3 and 4 (gross vehicular manslaughter while intoxicated). The People agree with defendant, citing Givan, supra, 233 Cal.App.4th at p. 351, People v. Vela (2012) 205 Cal.App.4th 942, 945, in which the issue was conceded and People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 (Miranda).
As we will explain, we find that application of the elements test dictates a contrary conclusion. Moreover, at the time of offense in Miranda, the intoxication element under former section 191.5, subdivision (a), could not be established by proving a violation of Vehicle Code section 23140. (See Miranda, supra, 21 Cal.App.4th at p. 1468.)
“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).) “When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. [Citations.] If neither offense is necessarily included in the other, the defendant may be convicted of both, ‘even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.’ [Citation.]” (People v. Sanders (2012) 55 Cal.4th 731, 736 (Sanders).)
“ ‘In deciding whether multiple conviction is proper, a court should consider only the statutory elements.’ [Citation.] ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.’ [Citation.] In other words, ‘ “[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” ’ [Citation.]” (Sanders, supra, 55 Cal.4th at p. 737.)
“Under the ‘elements’ test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.]” (People v. Ramirez (2009) 45 Cal.4th 980, 985.) Courts do not consider the accusatory pleading in deciding whether a defendant may be convicted of multiple charged crimes. (Reed, supra, 38 Cal.4th at p. 1231.) “Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense.” (People v. Parson (2008) 44 Cal.4th 332, 349, italics added.)
At the time of the 2013 collision, section 191.5, subdivision (a), defined, as it still does today, “gross vehicular manslaughter while intoxicated” as “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.” (Emphasis added.)
The version of section 23153, subdivision (a), (causing bodily injury while driving under the influence) that was operative at the time of the collision in November 2013 provided in pertinent part: “It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” (Stats. 1992, ch. 974, § 18, p. 4620.) Thus, the elements of the offense charged in count 5 were (1) the defendant drove a vehicle, (2) while under the influence of an alcoholic beverage or a drug or a combination of both, (3) concurrently committed an unlawful act or neglected to perform a legal duty, and (4) the unlawful act or failure to perform a legal duty proximately caused bodily injury to another person. (See Givan, supra, 233 Cal.App.4th at p. 349; CALCRIM No. 2100.)
We do not regard all violations of former Vehicle Code section 23153 as one in the same crime. Subdivisions (b) and (d) of former section 25153 each stated a different offense with different elements than did subdivision (a). The operative subdivision (b) at the time of the collision provided: “It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” (Stats. 1992, ch. 974, § 18, p. 4620, italics added.) The operative subdivision (d) at the time of the collision provided: “It is unlawful for any person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210, and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” (Stats. 1992, ch. 974, § 18, p. 4620, italics added.) Each of the subdivisions of former section 23153 criminalizing certain conduct set forth the elements of a separate crime.
Therefore, the statutory elements of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) do not necessarily include all the elements of causing injury while driving under the influence of alcohol, drugs, or a combination of both (former Veh. Code, § 23153, subd. (a)), such that the former could not have been committed without also committing the latter. For example, gross vehicular manslaughter while intoxicated does not necessarily require proof that the defendant was driving under the influence, which is an essential element of former Vehicle Code section 23153, subdivision (a). Under section 191.5, subdivision (a), the People may prove intoxication by proof of various statutory violations, including proof that the defendant drove with a prohibited BAC in violation of any one of the specified code sections.
Proof that a person drove with a BAC exceeding a specified legal limit does not entail proof that the person was driving under the influence, i.e. his driving was impaired. (See People v. McNeal (2009) 46 Cal.4th 1183, 1192-1193, 1197.) In contrast, “for a defendant to be guilty of driving while under the influence of drugs in violation of [a Vehicle Code provision] ‘ “the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]” ’ [Citations.]” (People v. Canty (2004) 32 Cal.4th 1266, 1278.)
Furthermore, as indicated, in order to violate section 191.5, subdivision (a), there must be proof that a defendant drove in violation of any of the specified Vehicle Code sections, only one of which is Vehicle Code section 23153. Accordingly, for example, proof that the defendant drove with a prohibited BAC in violation of Vehicle Code section 23140 satisfies the intoxication element of gross vehicular manslaughter while intoxicated. Proof that a driver had “0.05 percent or more, by weight, of alcohol in his or her blood” (Veh. Code, § 23140) does not necessarily prove the driver was under the influence as required for a violation of former Vehicle Code section 23153, subdivision (a).
Therefore, we conclude, without the need to further compare their statutory elements, that it is possible to commit gross vehicular manslaughter while intoxicated without necessarily committing the offense of violating former section 23153, subdivision (a). Accordingly, count 5 was not a lesser included offense of counts 3 and 4 under the elements test.
DISPOSITION
The judgment is affirmed.




_________________________________
ELIA, ACTING P.J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.