Filed 12/12/18 P. v. Jarquin CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

Appellant was driving while under the influence of alcohol when he was involved in a fatal car crash.[1] A grand jury returned an indictment charging appellant with the following ten offenses: two counts of second degree murder (Penal Code, § 187, subd. (a)) [2]; two counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); driving under the influence causing injury (Veh. Code § 23153, subd. (a)); driving with a blood alcohol level of 0.08 percent or higher causing injury (Veh. Code § 23153, subd. (b)); two counts of child abuse (§ 273a, subd. (a)); driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)); and providing false information to a peace officer (§ 148.9, subd. (a)). The indictment also alleged multiple sentence enhancement allegations for causing bodily injury and/or death while driving under the influence (§ 12022.7, subd. (a); Veh. Code, § 23558).

Following a jury trial, appellant was convicted of all charges and the sentence enhancement allegations were found to be true. The trial court sentenced appellant to an aggregate prison term of 30 years to life. In this court, appellant contends the judgment must be reversed because the prosecutor used her peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Appellant further contends his homicide convictions must be reversed due to jury instruction error and the erroneous exclusion of defense evidence. Finally, appellant claims the trial court erred by requiring him to pay an attorney fee as compensation for his court appointed counsel. We affirm the judgment and sentence.

II. BACKGROUND

A. The Car Crash

In June 2014, appellant lived in Concord with his wife and her children, Andres who was 12, and Dolores who was 16. On the evening of June 27, appellant and Andres picked up Dolores in downtown Concord, in appellant’s Ford Explorer, and appellant agreed to drive Dolores’s friend Jesse home to Bay Point. Andres sat in the front passenger seat, Dolores and Jesse sat in the back.

During the drive to Bay Point, there was no conversation, but the radio played music. Jesse felt that appellant was driving fast, at some points exceeding a posted speed limit of 35 mile per hour by as much as 20 miles. Andres noticed that the truck speedometer registered a speed of 60 miles per hour. Appellant swerved over the center line a few times. Andres was afraid appellant was intoxicated but did not say anything.

Shortly before 10:55 p.m., appellant was traveling north-east on Willow Pass Road when he reached the Kinne Bridge, a narrow, arched structure with two lanes divided by a double yellow line. Weather conditions were clear and dry, but there was “minimal streetlight and overhead lighting” on that stretch of road. After cresting the bridge, appellant’s car collided with a Dodge Charger traveling in the opposite direction. Lorena Dominguez was the driver of the Charger, her 22-month-old daughter was in the back seat, and her husband was in the front passenger seat. Appellant’s Explorer came to rest in the north-eastbound lane, facing sideways with its rear chassis on top of the guardrail. The Charger was stopped in the south-westbound lane, also facing sideways.

Peter and Kelsey Cochran drove by the accident scene, called 9-1-1 and stopped to offer aid. Peter helped the three passengers get out of appellant’s Explorer, leaving appellant who was pinned in his seat but appeared to be fine. Peter went to the Charger but could offer little help. Dominguez and her baby suffered catastrophic injuries. The baby died immediately, and Dominguez likely died very quickly. The baby’s father suffered two broken legs.

Kelsey sat on the roadside with the kids, whose injuries varied. Andres suffered a broken wrist and bruise on his chest, Dolores had cuts and bruises, and the crash seriously injured Jesse’s right arm, tearing an artery and muscles, shattering bones and damaging nerves. While they waited at the accident scene, Kelsey heard Dolores say that appellant was drunk.

B. Police Investigation

After firefighters extricated appellant from the Explorer, paramedics took him to John Muir Hospital. Concord Police Officer Juan Piceno followed from the accident scene to the hospital. Piceno found a Mexico Identification Card for Alvaro Mendoza in appellant’s wallet, which he passed on to Officer Blake Roberts, who interviewed appellant in the emergency room. During the interview, Officer Piceno translated appellant’s Spanish. Appellant identified himself as Alvaro Mendoza. He told Roberts that while he was driving to Bay Point, somebody turned the radio music up, which distracted him and caused him to swerve. He took his eyes off the road when he turned the radio down and when he looked back up, he realized that he had swerved to the left side of the road into the oncoming traffic lane. He saw the headlights of the vehicle driving toward him and attempted to avoid a collision by applying his brake, but the distance was too close and he hit the oncoming vehicle head-on.

Between 1:00 and 2:00 a.m. on the morning after the car crash, appellant was interviewed by Concord Police Officer Kevin Mansourian. Again, Officer Piceno translated appellant’s Spanish. Appellant produced the Mexico Identification Card and reported that his name was Alvaro Mendoza. He told Mansourian the same story he gave Officer Roberts, admitting that he had been focused on the car radio as he reached the crest of the bridge, and that his car drifted left into the wrong lane before the collision occurred. Appellant also told Mansourian that the collision was completely his fault, he would assume full responsibility, and once he was released from the hospital he would go to the police station and turn himself in.

Mansourian observed that appellant had objective symptoms of being intoxicated and asked how much he had to drink prior to the accident. Appellant admitted that he drank three 12-ounce cans of beer before he left his house to pick up Dolores and he said he felt slightly intoxicated while he drove to Bay Point, but not enough to affect his driving. When Mansourian told appellant he believed the accident was the result of appellant driving while under the influence, appellant disagreed. Appellant insisted that alcohol impairment was not a factor, but rather the sole reason for the crash was that he took his eyes off the road to turn down the radio, swerved into the oncoming traffic lane and hit the other car head on.

Police took appellant’s fingerprints, which revealed his true identity. When faced with this evidence, appellant admitted he was not Alvaro Mendoza.

At 2:10 a.m. on the morning after the collision, a nurse drew a blood sample from appellant. The sample was tested by John Udowski, a criminalist employed by the Contra Costa Sheriff’s Office. Udowski concluded that appellant’s blood-alcohol level was 0.11, which meant his blood-alcohol level at the time of the accident would have been 0.17. Udowski subsequently testified as an expert at appellant’s trial, explaining to the jury the effects of alcohol consumption, which include loss of fine motor control, inability to concentrate and impaired judgment. Udowski also testified that all persons are “significantly impaired” for purposes of driving a motor vehicle safely once their blood alcohol reaches 0.08 percent.

C. Accident Reconstruction

Concord Police Officer Kenneth Carlson was the traffic investigator assigned to this case. Carlson arrived at the scene less than two hours after the accident occurred, examined the physical evidence, measured locations and took photographs. Carlson drew conclusions about what happened, which he presented to the jury through expert testimony. Carlson concluded that the collision occurred in Dominguez’s lane on the Kinne Bridge on Willow Pass Road. The vehicles met head-on at a slight angle, which caused them to rotate counter clock-wise approximately 90 degrees before coming to rest in their respective lanes. The trajectory of the contact also caused the vehicles to elevate at a downward angle, with the Explorer’s rear end coming to rest on the guardrail, and the Charger breaking a tree branch overhanging the bridge.[3]

Appellant’s accident reconstruction expert, William Woodruff, disagreed with Carlson’s analysis and conducted his own reconstruction of the accident using a computer software program. Woodruff testified at appellant’s trial that the only scenario consistent with the physical evidence was that the collision occurred in appellant’s lane, not in Dominguez’s lane as Carlson had opined. According to Woodruff, Dominguez drifted over into appellant’s lane and struck appellant’s car in an offset frontal collision.

D. Appellant’s History of Driving While Intoxicated

At appellant’s trial, the prosecution presented evidence about three prior incidents when appellant drove while intoxicated.

On February 21, 2009, at 1:00 a.m., Stockton police found a Honda stopped in the middle of the road with appellant slumped over in the driver’s seat wearing a seat belt. The doors were locked, the key was in the ignition in the “on” position, the shifter was in first gear. Appellant did not respond to verbal communication. The officers pounded hard on the window and eventually appellant woke up and pretended to be using a cell phone. When appellant got out of the car he was visibly impaired. Officers found seven empty beer bottles and another bottle that was still cold and had liquid in it. A blood draw performed after appellant’s arrest revealed a blood-alcohol content of 0.18 percent.

On August 3, 2010, at 11:30 p.m., Stockton police dispatched an officer to respond to a report that someone was driving recklessly in a grey Nissan Maxima. The officer found appellant on Highway 4, weaving as he drove 15 miles per hour in a 35 mile per hour zone. Appellant did not pull over when the officer activated his lights and siren or when the officer used his public address system to order him to stop. The officer followed appellant onto a side street, issued a second command to stop and, eventually, appellant did. Appellant was visibly impaired but denied drinking anything. Following his arrest, appellant’s blood was tested and revealed a blood-alcohol level of 0.20 percent.

In April 2011, appellant was arrested in Stockton and subsequently pleaded guilty to driving while intoxicated. The incident occurred at 5:00 in the afternoon, with appellant’s pregnant wife in the passenger seat. Appellant was driving erratically in a 35 mile per hour zone on Willow Pass Road, drifting between lanes, slowing down to 10 miles per hour and then accelerating to 25 miles per hour. After observing appellant drift left over the double yellow line, an officer initiated a traffic stop by activating his emergency lights. Appellant slowed, moved to the far-right lane and then sped up. The officer activated his siren several times before appellant finally stopped. Appellant was visibly intoxicated. A breathalyzer test administered at the scene revealed a blood-alcohol content of 0.21 percent. Following his conviction for driving under the influence, appellant participated in a drinking and driving education course.

E. Appellant’s Defense

Appellant’s defense at trial was that he was guilty of driving while intoxicated and giving false information to the police, but that the prosecutor failed to prove that he caused the accident. According to the defense theory, the jury was required to accept a reasonable interpretation of the evidence that was inconsistent with a finding of guilt, and in this case a reasonable interpretation of the accident reconstruction evidence was that the collision occurred because Dominguez drifted into appellant’s lane. Defense counsel also argued the following circumstances were inconsistent with finding that appellant acted with implied malice or gross negligence: appellant was not out drinking but doing a favor for his family; appellant thought he was safe to drive and nobody told him otherwise; and appellant was not driving recklessly. The jury rejected appellant’s defense, returning guilty verdicts on all the charged offenses and true findings as to all sentence enhancement allegations.

III. DISCUSSION

A. Batson/Wheeler Issues

Appellant contends the trial court erred by denying his Batson/Wheeler motions regarding two prospective jurors, Mr. Z. and Mr. H., despite strong evidence that the prosecutor used peremptory challenges to excuse these individuals because of their race.

1. Legal Principles and Standard of Review

“Peremptory challenges are a long-standing feature of civil and criminal adjudication. But the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution. (Batson, supra, 476 U.S. 79; United States v. Martinez-Salazar (2000) 528 U.S. 304, 315 [120 S. Ct. 774, 145 L. Ed. 2d 792].) Such conduct also violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. (Wheeler, supra, 22 Cal.3d 258, 276–277.)” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157 (Gutierrez).)

“A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution’s offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] ‘The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 75 (Manibusan).)

“On appeal, we review the trial court’s determination deferentially, ‘examining only whether substantial evidence supports its conclusions. [Citation.]’ [Citation.] ‘We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ ” (Manibusan, supra, 58 Cal.4th at p. 76.)

2. Background

In the present case, jury selection was conducted over eight court days between November 18 and December 7, 2015.[4]

Prospective jurors included Mr. Z., who reported that he was 20 years old and did construction work for his sister’s company. Spanish was his first language, but he said he would listen to the English translation of Spanish speaking witnesses. When the prosecutor asked about his experience with alcohol, Mr. Z. said that he did not drink and drive. He acknowledged when asked that he knew what the effects of alcohol felt like. Mr. Z. said he would be comfortable evaluating evidence to determine whether a person was under the influence of alcohol, but he denied that he had ever had to make a comparable decision in his personal life, with respect to his friends. Mr. Z. stated he had never observed a friend who he thought had too much to drink.

Another prospective juror, Mr. H., stated that he had prior work experience in law enforcement and the legal profession. He spent eight years as a counselor for the probation department, went to law school, and worked as a legal intern. He took the bar a few times but did not pass it. Mr. H. also stated that his father and brother had both been arrested for DUI. When the prosecutor asked about the incidents, Mr. H. responded that they “were both wrong,” and both were punished. He continued, “you know, the way I look at it, if you’re drunk, you’re drunk; and if they arrest you and they prove it, you’re guilty. But if—just because you drink, it doesn’t mean you can’t drive.” Mr. H. went on to describe his own experiences with drinking and driving, prefacing his remarks by saying that Malcolm X “did alcohol and drugs.” Mr. H. reported that he used to drink too much, and it affected his marriage. He went to AA and then went back to drinking, but he now tries to “drink more responsibly.” Mr. H. said that there were times in the past when he should have been arrested for drunk driving, but he never was because he was lucky. He also stated that it was necessary to look at all the facts—not just whether the person had a drink—before deciding if someone was guilty of drunk driving.

On Tuesday, December 1, the prosecution and defense began exercising peremptory challenges. The prosecutor used her second challenge against Mr. Z. Defense counsel made an objection, which was resolved during an in chambers hearing. After returning to the record, the court thanked and excused Mr. Z. A few minutes later, the prosecutor used her fourth challenge to excuse Mr. H. Again, defense counsel objected, the court conducted an in chambers hearing with counsel, and then Mr. H. was excused.

On Monday, December 7, the trial court and counsel made a record of what happened at the unrecorded Batson/Wheeler hearings previously conducted on December 1. The December 7 record of these events frames our analysis of appellant’s claims with respect to each prospective juror.

3. Mr. Z.

a. The December 7 Record

On December 7, the trial court recalled that it began its Batson/Wheeler inquiry by asking defense counsel to state why she thought “a prima facie case had been established.” Then, the court invited defense counsel, Ms. Garrido, to respond. Garrido stated: “Yes, I did indicate that Mr. [Z.] was a Latino male, and he was the only one of very few in the panel, that the views that he announced were for prosecution, if anything, and I didn’t see a race-neutral reason to excuse him. I also noted that that was only the second peremptory used, but that the first peremptory was used to excuse somebody of a different protected minority group, and that was [Mr. R.H.].”

Next, the court stated that it had asked the prosecutor, Ms. Piersig, to address whether the defense stated a prima facie case. Ms. Piersig recalled giving three reasons for disputing a prima facie case had been made. First, this was her first challenge against a person of “apparent Hispanic background” and “there was no evidence of a pattern or any evidence that this was for racially-based reasons.” Second, the defense claim that there was a pattern of discrimination was erroneous because (1) defense counsel had lumped together Mr. R.H., who was of apparent Middle Eastern descent, with Mr. Z., who was of apparent Hispanic descent; and (2) the prosecutor excused Mr. R.H. because he stated he did not like the prosecution and could not be fair. Third, the defense had “excused members of the Hispanic nationality for their own reasons.”

Then, the trial court stated that during the December 1 hearing, the court had asked the prosecutor to provide reasons for excusing Mr. Z., and it opined in retrospect that this request could justify an inference that the court had believed there was a prima facie case. “[W]ith that assumption in mind,” the court went on to explain that it denied the Batson/Wheeler motion because “[t]here were a number of factors recited by the People” that were not based on Mr. Z.’s race, including that he was only 20 years old; he was not old enough to drink; the prosecutor found it difficult to engage with him; and he displayed a level of immaturity.

In recounting these race-neutral reasons, the court confirmed they were consistent with its own observations of Mr. Z., pointing out for example that “all the time that he was sitting, he was chewing on his hoodie . . . .” Thus, the court concluded, “so I think that he did show that he lacked life experiences. He seemed to have a limited degree of sophistication, and his presentation also showed immaturity, so the Court denied that challenge.”

b. Analysis

Appellant contends the trial court made two prejudicial errors during its Batson/Wheeler inquiry regarding the prosecutor’s excusal of Mr. Z. First, he argues the court misapplied the law by placing the burden on the defense to prove that the prosecutor had engaged in a pattern of discrimination. According to appellant, the court made this error by accepting the prosecutor’s argument that the defense failed to make a prima facie case because it did not establish a pattern of discrimination.

“When a party makes a Wheeler motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.)” (People v. Avila (2006) 38 Cal.4th. 491, 549.) Evidence of “a ‘pattern of systematic exclusion’ of a particular cognizable group from the venire raises an inference of purposeful discrimination.” (Ibid.) However, “[e]xcluding by peremptory challenge even ‘a single juror on the basis of race or ethnicity is an error of constitutional magnitude.’ ” (Gutierrez, supra, 2 Cal.5th at p. 1172.)

Contrary to appellant’s argument here, the prosecutor did not argue that a pattern of discriminatory conduct was required to state a prima facie case; she argued that defense counsel failed to make a prima facie case because there was no evidence Mr. Z. was removed for a discriminatory reason and because the record did not support defense counsel’s suggestion there was a pattern of discrimination. Furthermore, and in any event, the trial court did not state that a pattern of discrimination was required. Instead, the court assumed the defense had made a prima facie case, but ultimately concluded that the prosecutor had non-discriminatory reasons for removing Mr. Z.

Appellant next contends that the trial court erred during the second step of its inquiry by coming up with race-neutral reasons for excusing Mr. Z. instead of drawing an inference of discriminatory intent from the prosecutor’s refusal to provide a race-neutral explanation when one was requested.

“At step two of the analysis, the prosecutor ‘must provide a “ ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” [Citation.] “The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.’ [Citation.] However, ‘race-based decisions are not constitutionally tolerable.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 434 (Winbush).)

“[I]n judging why a prosecutor exercised a particular challenge, the trial court and reviewing court must examine only the reasons actually given. ‘If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.’ ” (People v. Jones (2011) 51 Cal. 4th 346, 365, quoting Miller-El v. Dretke (2005) 545 U.S. 231, 252; see also Gutierrez, supra, 2 Cal.5th at p. 1167.)

Here, the record belies appellant’s claim that the prosecutor refused to provide a race-neutral reason for excusing Mr. Z. As discussed above, the prosecutor stated that she excused Mr. Z. because of his youth, immaturity and limited life experience. These are race-neutral reasons for exercising a peremptory challenge. (See People v. Hamilton (2009) 45 Cal.4th 863, 903; People v. DeHoyos (2013) 57 Cal.4th 79, 108–109 (DeHoyos); People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) Appellant does not argue otherwise. Instead, he argues that the trial court supplied these reasons to justify the prosecutor’s removal of Mr. Z. But that is not what happened. In making a record of the December 1 hearing, the court recounted the non-discriminatory reasons that the prosecutor provided during the in chambers hearing.

Substantial evidence supports the trial court’s ruling that the prosecutor did not excuse Mr. Z. because of his race. Appellant’s claims to the contrary are based on misconceptions about the record. Thus, he has failed to demonstrate that the trial court erred by denying his Batson/Wheeler motion as to Mr. Z.

4. Mr. H.

a. The December 7 Record

On December 7, the trial court made a record of the fact that it began its Batson/Wheeler inquiry regarding Mr. H. by asking defense counsel to state why she thought there was a prima facie case. Then Ms. Garrido recounted her arguments that Mr. H. was an African-American male, one of few on the panel; that he stated he could be fair; and that he had previous experience working in law enforcement.

The court then reiterated its view that “by asking for an explanation from the People as to whether a prima facie case had been made, it could be argued that there was an implied finding of such a case.” Therefore, the court asked the prosecutor to make a record of her reasons for excusing Mr. H. In response, Ms. Piersig recalled providing two sets of reasons at the December 1 hearing for excusing Mr. H. First, he had attended law school and taken the bar exam twice but failed to pass. Second, he admitted to driving under the influence many times, but never getting caught and, although he had attended AA in the past, he was still drinking.

Explaining why it previously denied this Batson/Wheeler motion, the court stated that Mr. H. gave “very interesting responses” to questions, and it confirmed that Mr. H. made admissions that he often drove while under the influence but had not been caught, and that he had a drinking problem in the past, had gone to AA, but was still drinking. Ultimately, the court concluded: “There were just a lot of reasons that were associated with his answers that I think provided ample room for non-race-specific reasons to excuse him as a juror, so the Court denied the [Batson/Wheeler motion].”

b. Analysis

Appellant does not dispute that the prosecutor provided race-neutral reasons for removing Mr. H., namely his law school experience, failure to pass the bar, history of alcohol related driving, and failure to stop drinking after attending AA. However, appellant contends the trial court erred at the third stage of its Batson/ Wheeler inquiry because it accepted these proffered explanations at face value.

“ ‘At the third stage of the Wheeler/Batson inquiry, “the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” [Citations.]’ [Citation.] Implausible or fantastic justifications offered at the second stage may not be sufficiently credible to pass muster at stage three. [Citation.] ‘In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.’ [Citation.] This assessment may also take into account ‘the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her.’ ” (Winbush, supra, 2 Cal.5th at p. 434.)

Here, appellant contends the trial court made a “global finding that there were ample reasons to challenge” Mr. H., which failed to “comply with the Batson/Wheeler mandate” to make a reasoned effort to evaluate whether the prosecutor’s justification for removing a prospective juror was credible. Again, appellant misconstrues the record by ignoring the fact that the Batson/Wheeler inquiry was conducted on December 1. On December 7, the court did not make a “global finding,” but only summarized with the assistance of counsel what had happened at the unrecorded hearing the previous week. Importantly, the court memorialized the fact that the many reasons the prosecutor gave for striking this juror were consistent with the court’s own observations and memory of the voir dire examination. Moreover, appellant’s trial counsel, who had the opportunity to make her record, did not say anything to indicate that the court had failed to probe the prosecutor adequately during the December 1 conference. Thus, appellant has not demonstrated that the court abused its discretion by concluding that the prosecutor removed Mr. H. for reasons unrelated to his race.

Appellant contends that a comparative juror analysis demonstrates that the reasons the prosecutor gave for striking Mr. H. were not credible. Our Supreme Court has recognized that a comparison of prospective jurors who were challenged to those who were not can bear on the issue of discriminatory intent, even if the comparison is made for the first time on appeal. (DeHoyos, supra, 57 Cal.4th at p. 103.) However, we must be “ ‘ “ ‘mindful that comparative juror analysis on a cold appellate record has inherent limitations.’ [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. ‘Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.’ ” ’ ” (Ibid.)

Here, appellant parses the two sets of reasons that the prosecutor gave for excusing Mr. H. and then purports to show that unexcused jurors fell into one of these two categories. This analytical approach fails to consider the totality of the circumstances supportive of the ruling that Mr. H. was not excused because of his race. Beyond that, appellant’s analogies are not persuasive.

First, appellant contends the fact that Mr. H. went to law school but failed to pass the bar was a pretext for discrimination because the prosecutor did not excuse two other jurors with similar experiences: Juror 2, who stated that he applied to the FBI, but did not pass an integrity test because he answered every question honestly, not realizing there were ways to avoid disclosing some facts; and Juror 18, who had a “criminal justice background and had interned at both prosecution and defense office[s].”

While the record does not reveal what concerned the prosecutor about a potential juror who attended law school but failed to pass the bar exam after several attempts, we see no strong parallel between these facts and the circumstances of a juror who felt that he was denied an employment opportunity for being honest, or a juror who simply had worked in the legal profession. Moreover, the record of the trial court’s Batson/Wheeler inquiry suggests this factor was not as important as the prosecutor’s alcohol-related concerns about Mr. H.

Appellant next contends that Mr. H.’s problems with alcoholism and history of driving while intoxicated were not legitimate race-neutral reasons for excusing him from the jury pool when the prosecutor did not excuse Juror 2, Juror 107 or Juror 104, who all had similar problems.

According to appellant, Juror 2 was “stopped for suspected DUI in 2010, under circumstances very similar to one of appellant’s prior incidents.” The record shows that Juror 2 reported he was mistakenly arrested for DUI. After drinking, he went to put something in his car, which was parked in a carport, and fell asleep. A neighbor called police and when they woke him up, Juror 2 admitted he drove that day, but failed to clarify that he did not drive after he started drinking. Juror 2 opined that the officer had no choice but to arrest him under the circumstances and said the incident would not affect his ability to be fair. This experience was nothing like appellant’s prior arrests, all of which showed that he drove while seriously impaired. More to the point, Juror 2 was different from Mr. H., who admitted that he had a drinking problem that required him to attend AA, and that he drank and drove but was never caught.

Appellant questions why the prosecutor did not excuse Juror 107 who had a family history of alcoholism, and a prior DUI conviction, but continued to drink. Juror 107 was convicted for driving under the influence as a teenager and had a second conviction in his 20’s. He said these experiences screwed up his life for a while, taught him a lesson, and he had stopped engaging in that conduct. Juror 107 also had family members who had been in accidents when driving while intoxicated, but he said those events happened a long time ago and they no longer engaged in that behavior. Thus, the prosecutor could reasonably have concluded that Juror 107 changed his behavior and his attitude after he and his family suffered consequences for driving while intoxicated. Juror 107 shared other experiences that were consistent with this assessment. He said that he was a truck driver, who previously worked closely with Highway Patrol officers while helping to clear accidents. As a tow truck driver, Juror 107 saw a lot of DUI accidents and fatalities. And about a year and half before trial, he was on the road early one morning and reported another driver that he suspected might be intoxicated.

When viewed as a whole, the answers that Juror 107 gave during the voir dire process indicate why the prosecutor could have viewed him as a favorable witness, despite his early history of drinking and driving. By a parity of reasoning, the prosecutor could reasonably have concluded that Mr. H., who drove while intoxicated but never got caught, and who attended AA but continued to drink, would not be amenable to evidence that appellant acted with implied malice by driving while intoxicated when the crash occurred.

Finally, appellant points out that the prosecutor did not challenge Juror 104, who was married to a man with two DUI arrests. Juror 104 stated that she did not drink alcohol at all, disclosed that she had made donations to “MADD” several times, and expressed the view that people who are impaired by alcohol consumption should not drive. Thus, in contrast to Mr. H., Juror 104 did not disclose any personal struggles with alcoholism or driving while intoxicated. Juror 104 did report her husband was arrested for DUI a few times, but that was 38 years ago. The events were not indicative of a problem with alcoholism comparable to the problems Mr. H. admitted he had. Furthermore, Juror 104 said her husband had been treated fairly and his experiences would not affect her ability to be partial here.

The record summarized above establishes strong reasons for excusing Mr. H. from this jury that have nothing to do with his race. Indeed, appellant does not dispute that the prosecutor proffered nondiscriminatory reasons for excusing this prospective juror. Furthermore, his claim that the trial court failed to consider whether these reasons were pretextual is based on an unreasonable interpretation of the record and is not supported by his flawed comparative juror analysis. The record, thus, supports the trial court’s Batson/Wheeler ruling as to Mr. H.

B. The Jury’s Question

Appellant contends he was denied his constitutional right to a fair trial on the second degree murder charges because the trial court failed to provide an adequate answer to a question the jury posed during its deliberations.

“ ‘When a jury asks a question after retiring for deliberation, “[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.” [Citation.]’ [Citation.] ‘This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.’ [Citation.] ‘We review for an abuse of discretion any error under section 1138.’ ” (People v. Hodges (2013) 213 Cal.App.4th 531, 539, fn. omitted.)

1. Background

On December 15, the court began instructing the jury regarding the law pertaining to ten counts charged in the grand jury information filed against appellant in this case. Counts 1 through 4 were the homicide offenses; Count 1 and 2 charged appellant with the second degree murders of Dominguez and her daughter and Count 3 and 4 charged him with gross vehicular manslaughter.

To instruct the jury regarding these charges, and their respective lesser included offenses, the court used several CALCRIM instructions, including: CALCRIM No. 500 [definition of homicide]; CALCRIM No. 510 [accidental or “excused” homicide]; CALCRIM No. 520 [second degree murder with malice aforethought]; CALCRIM No. 580 [involuntary manslaughter as a lesser offense of murder]; CALCRIM No. 590 [gross vehicular manslaughter while intoxicated]; CALCRIM No. 591 [vehicular manslaughter committed with ordinary negligence while intoxicated]; CALCRIM No. 592 [gross vehicular manslaughter]; CALCRIM No. 593 [vehicular manslaughter with ordinary negligence]; and CALCRIM No. 620 [special issues relating to causation].

CALCRIM No. 520, which addressed the elements of the second degree murder charges, stated: “The defendant is charged in Counts 1 and 2 with murder in violation of Penal Code section 187. [¶] To prove that the defendant is guilty of this crime the People must prove that: [¶] 1. The defendant committed an act that caused the death of []another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought.”

CALCRIM No. 520 also instructed the jury that there are two kinds of malice aforethought, express and implied, defined each kind of malice, and instructed that proof of either is sufficient to establish the mental state required to prove murder. Thus, the jury was told that express malice means an unlawful intent to kill, and that a defendant acted with implied malice if: “1. He intentionally committed an act; [¶] 2. The natural and probable consequence of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.” This instruction also explained the relationship between malice and the act causing death: “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.”

Regarding the element of causation, CALCRIM No. 520 stated: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.”

As noted, the jury was also instructed with CALCRIM 620, which further addressed the causation element, stating: “There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death. [¶] The failure of [Ms.] Dominguez or another person to use reasonable care may have contributed to the death. But if the defendant’s act was a substantial factor causing the death, then the defendant is legally responsible for the death even though [Ms.] Dominguez or another person may have failed to use reasonable care. [¶] If you have a reasonable doubt whether the defendant’s act caused the death, you must find him not guilty.”

The jury began deliberating on the December 17. On December 18, at around 10:20 a.m., the jury sent the court a note with the following question: “In counts 1 and 2, what is the specific act that is being talked about?”

According to the court minutes, the trial court and counsel conferred in chambers off the record, and then at 11:35 a.m., the court sent the jury the following response: “The People have alleged that the defendant committed the act of driving under the influence of an alcoholic beverage. You must not find the defendant guilty unless you all agree that the People have proved beyond a reasonable doubt that the defendant committed this act and that the act caused the death.” The jury continued to deliberate for the rest of that day and another full court day before returning its verdicts.

3. Analysis

Appellant contends that the trial court’s response to the jury question that we quote above deprived him of a fair trial because the court “failed to properly and fully define the conduct necessary to support a verdict of second degree murder.”

The record shows that the jury’s question was discussed with counsel off the record before a response was given. There is no indication either party objected to that response. This fact supports an inference that appellant’s trial counsel consented to the response. Indeed, she may even have proposed it. These circumstances support the conclusion that appellant forfeited this claim of error. (See People v. Salazar (2016) 63 Cal.4th 214, 248–249 [defense counsel’s agreement about how to answer jury question forfeits claim of error].)

Appellant argues an objection was not required to preserve this issue for review, citing section 1259, which permits an appellate court to “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Under this statute, “failure to object to instructional error forfeits the objection on appeal unless the defendant’s substantial rights are affected. [Citations.] ‘Substantial rights’ are equated with errors resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818.” (People v. Mitchell (2008) 164 Cal.App.4th 442, 465.)

Here, the response to the jury’s question was not an instruction in the traditional sense, but assuming it should be treated as one, the error appellant alleges did not affect his substantial rights. Appellant does not contend the jury instructions as a whole were erroneous or incomplete. Nor does he contend that this specific response was erroneous, but rather that some additional unspecified information should have been provided to the jury. “ ‘ “Where an instruction on a particular point or points as given by the court is correct as far as it goes, and the only valid objection, if any, to it is that it is deficient or inadequate by reason of its generality, indefiniteness, or incompleteness, if defendant desires additional, amplified, explanatory, fuller, or more complete, elaborate, comprehensive, definite, specific or explicit instructions on such point or points, he must properly request the same, otherwise error cannot be predicated upon the failure to give such additional instruction.” ’ ” (People v. Burrows (1968) 260 Cal.App.2d 228, 230.)

Appellant argues the response to the jury question did affect his substantial rights because causation was the key disputed issue at trial and, by failing to “make clear that the jury had to consider appellant’s conduct in context and consider all the circumstances surrounding and preceding the accident,” the court essentially told the jury that appellant was guilty of murder if he was driving while intoxicated.

The court did not explicitly or implicitly advise the jury that appellant was guilty of murder if he was driving while intoxicated. The jury asked a direct question about what specific act had to be proven to support the two murder charges. The response answered that specific question by identifying the act alleged by the prosecution— driving while intoxicated. But it also told the jury that this act had to have caused the deaths of Dominguez and her daughter. Further, as discussed above, the jury had already been fully instructed regarding the causation element of the homicide charges. Appellant does not contend otherwise.

Instead, appellant insists the response to the jury’s question was fatally incomplete because it did not inform the jury that it also had to find that appellant committed the act “with reckless disregard for human life.” However, that information was not responsive to the question the jury asked. Furthermore, nothing in the response that was given could reasonably be interpreted as vitiating the extensive jury instructions that the court had already delivered orally and in written form to the jury.

According to appellant, “[u]nder the instruction given, even if the jury believed the defense expert’s testimony that the crash could not have been caused by appellant crossing into the V2 lane, and that Dominguez had to have crossed into appellant’s lane of traffic, they could still find him guilty because [he] was driving under the influence.” This is not a reasonable interpretation of the response to the jury’s question. As discussed, the jury was explicitly reminded that appellant’s act had to have caused the deaths.

Appellant contends that driving under the influence and causing death does not constitute second degree murder unless there is some additional evidence of implied malice. (Citing People v. Watson (1981) 30 Cal.3d 290 (Watson).) He further argues that this was a key weakness in the prosecution’s case because there was no evidence that he drove recklessly when the collision occurred. Thus, appellant posits that the failure to discuss the implied malice requirement in the response to the jury’s question misled them to believe that implied malice was not required so long as appellant was driving under the influence.

In Watson, supra, 30 Cal.3d 290, our Supreme Court first held that “[m]alice may be implied when a person willfully drives under the influence of alcohol.” (People v. Wolfe (2018) 20 Cal.App.5th 673, 681.) “Following the Supreme Court’s ruling in Watson, appellate courts have upheld numerous murder convictions in cases where defendants have committed homicides while driving under the influence of alcohol. [Citations.] Generally, these opinions ‘have relied on some or all of the following factors’ that were present in Watson: ‘(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.’ [Citation.] However, ‘nowhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder. Rather, the opinion states that the presence of those factors was sufficient in that case. . . .’ ” (Id. at pp. 682–683, fn. omitted.)

Thus, contrary to appellant’s premise, driving under the influence is conduct that can support a finding of implied malice murder. Furthermore, to the extent related factors are relevant under Watson, we reject appellant’s notion that there was no evidence he drove recklessly. As discussed in our factual summary, there was substantial evidence that appellant was speeding and swerving during the drive to Bay Point. Moreover, appellant’s history of driving while intoxicated was evidence that he knew the hazards of such conduct but did it anyway.

More to the point, the jury’s question did not ask about implied malice; it asked the court to identify the specific act in the elements of the second degree murder charges. By answering that direct question the court did not mislead the jury to disregard the extensive jury instructions previously delivered, which fully and accurately addressed all the elements of second degree murder.

C. Exclusion of Defense Evidence

Appellant contends he was denied a fair trial on all the homicide charges because the trial court excluded relevant evidence supportive of his causation defense. “We review a trial court’s ruling excluding evidence on grounds of irrelevance [citation] for abuse of discretion. ‘ “ ‘The trial court has broad discretion in determining the relevance of evidence [citation] but lacks discretion to admit irrelevant evidence.’ ” ’ ” (People v. Thornton (2007) 41 Cal.4th 391, 444.)

1. Background

Prior to trial, the defense filed an in limine motion to admit evidence of accidents that occurred on Kinne Bridge, arguing the evidence was relevant to the disputed issue of causation because it showed that the bridge was dangerous.

While the trial progressed, the People voluntarily produced discovery, and, after the prosecution rested its case, the defense refined its motion by seeking to admit evidence of specific accidents that occurred in January 2014 and January 2015. The defense argued both accidents were similar to the present case because they were caused by lack of visibility due to the incline at the crest of the bridge.

The trial court held a hearing outside the presence of the jury at which it denied both defense motions, finding the accidents were not similar to the incident in this case.

2. Analysis

Appellant contends the trial court erred by excluding defense evidence regarding the January 2014 and January 2015 accidents because (1) this evidence was relevant to show that other accidents had been caused by lack of visibility due to the design of the Kinne Bridge and (2) evidence that decreased visibility was a dangerous condition of the bridge was crucial to his defense because (3) it reinforced the opinions of the defense expert and established an alternative to the prosecutor’s version of the events.

First, this claim rests on the erroneous premise that the January 2014 and January 2015 accidents were caused by lack of visibility. The record shows that defense counsel made that argument. However, the trial court rejected it as unsubstantiated; police reports did not identify lack of visibility as a cause of either accident but stated that both were rear-end collisions caused by excessive speed. Defense counsel asked if the court would change its ruling if the defense produced evidence that one of the drivers “stated that she ran into [the other car] because [she was] unable to see because [of] the incline in the bridge.” The court responded that it would reconsider its ruling if the defense produced that evidence. However, as best we can determine, the matter was dropped. Appellant overlooks this part of the record, which undermines his abuse of discretion claim.

Second, the record supports the trial court’s finding that the January 2014 and January 2015 accidents were not similar to the collision that occurred in this case. The present case involved a head-on collision and an agreement among experts that one of the drivers was travelling in the wrong lane when the collision occurred. The January 2014 and January 2015 accidents, by contrast, were rear-end collisions caused by drivers who were driving too fast.

Finally, contrary to appellant’s position on appeal, his defense at trial was not that the collision in this case was caused by reduced visibility attributable to the design of the Kinne Bridge. The defense argued that Dominguez caused the accident by driving into appellant’s lane. Appellant’s trial expert anchored this theory by opining that the physical evidence compelled the conclusion that Dominguez caused the accident. He was not offered or qualified as an expert in bridge design and did not offer any opinion on that issue.

Under these circumstances, we conclude the trial court did not abuse its discretion by excluding evidence of the dissimilar January 2014 and January 2015 accidents.

D. The Attorney Fee Order

Appellant contends the trial court erred by ordering him to pay an attorney fee for his court appointed counsel pursuant to section 987.8.

“Section 987.8 establishes the means for a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant. [Citation.] Under subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the court concludes, after notice and an evidentiary hearing, that the defendant has ‘the present ability … to pay all or a portion’ of the defense costs. [Citations.] If this finding is made, ‘the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.’ ” (People v. Polk (2010) 190 Cal.App.4th 1183, 1205, fn. omitted.)

In the present case, when the trial court announced appellant’s sentence, it ordered him to pay a $500 attorney fee. On appeal, the parties agree that the court did not conduct an evidentiary hearing regarding appellant’s ability to pay this fee as required by section 987.8. Appellant contends this omission requires us to strike the fee permanently or remand this case for an ability to pay hearing. The People argue appellant forfeited this claim of error by failing to object at the sentencing hearing.

Under People v. Scott (1994) 9 Cal.4th 331, 353 (Scott), a defendant forfeits on appeal any “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” unless he or she objected below. Our Supreme Court has held that this appellate forfeiture rule applies to a defendant’s claim that he was deprived of procedural protections afforded by a sentencing statute. (People v. Trujillo (2015) 60 Cal.4th 850, 858.) Furthermore, in People v. Aguilar (2015) 60 Cal.4th 862, 867 (Aguilar), the court applied the Scott forfeiture rule to a challenge to an attorney fee imposed under section 987.8. We are bound by these Supreme Court decisions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, the failure to object to the trial court’s order that appellant pay a $500 attorney fee forfeited the issue for appeal. (Aguilar, supra, 60 Cal.4th 862.)

Appellant contends the forfeiture rule does not apply here for two reasons. First, he argues that Aguilar is inapposite because the Aguilar defendant was sentenced to probation whereas appellant received a lengthy prison sentence. This distinction is material, appellant argues, because his sentence gave rise to a statutory presumption that he did not have the ability to pay an attorney fee (§ 987.8 subd. (g)(2)), and his claim that there was no evidence to rebut that presumption is, in essence, a sufficiency of the evidence claim, which does not require a lower court objection to avoid forfeiture under the rule stated in People v. Butler (2003) 31 Cal.4th 1119 (Butler).

Appellant cites no authority for limiting the scope of Aguilar in the way he proposes here. The forfeiture principles applied in Aguilar did not depend on the fact that the defendant was sentenced to probation. Furthermore, the Aguilar court itself found that the rule applied in Butler does not apply to an attorney fee imposed under section 987.8, explaining: “Butler permitted the appeal, even without a contemporaneous objection, of an order for involuntary HIV testing of a defendant convicted of a sex offense enumerated in section 1202.1, on the ground the record contained insufficient evidence to establish probable cause to believe the defendant transferred a bodily fluid capable of transmitting HIV to the victim. [Citation.] Butler did not articulate a general rule that would displace Scott’s forfeiture principle, and its reasoning is, on its face, limited to section 1202.1 and controlled by the statutory restrictions on involuntary HIV testing.” (Aguilar, supra, 60 Cal.4th at p. 867.) Finally, appellant overlooks that the presumption of section 987.8 subd. (g)(2)(B) applies only to “future financial ability to reimburse,” not to a “defendant’s present financial position,” which is also relevant to the ability to pay inquiry. (§ 987.8, subd. (g)(2)(A).)

In his second attempt to avoid the forfeiture rule, appellant argues that his trial counsel’s failure to object to the attorney fee constituted ineffective assistance of counsel. “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Here, appellant argues there is no legitimate explanation or conceivable tactical reason for failing to object to the attorney fee.

The record shows that after the jury returned its guilty verdicts, appellant’s trial counsel objected to the preparation of a probation report and, after that objection was overruled, defense counsel refused to allow the probation department to ascertain any social information about appellant for purposes of its report, including information regarding appellant’s financial status. Consequently, the record contains no evidence regarding the financial resources available to appellant and his wife. However, if an ability to pay hearing had been conducted, appellant may have been required to disclose information he preferred to keep confidential and which may have shown that his ability to pay was greater than the trial court assumed. Because the record does not foreclose the possibility of a tactical reason for failing to object to the attorney fee, appellant cannot carry his burden of establishing he was denied the effective assistance of counsel.

IV. DISPOSITION

The judgment is affirmed.

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Tucher, Acting P.J.

We concur:

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Reardon, J.*

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Lee, J.**