Filed 8/27/18 P. v. Gray CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, W. Charles Morgan, Judge. Affirmed.

Law Offices of Beles and Beles, Robert J. Beles, and Joseph L. Ryan for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Durjan Germaine Gray of the second-degree murder of a peace officer (Pen. Code, §§ 187, subd. (a), 190, subd. (b)), gross vehicular manslaughter (id., § 191.5, subd. (a)), and flight from a peace officer causing death (Veh. Code, § 2800.3, subd. (b)).[1] The jury also convicted Gray of driving under the influence with injury (§ 23153, subd. (a)) and found that he personally inflicted great bodily injury on a person, not an accomplice, in the commission of that offense (Pen. Code, § 12022.7, subd. (b)). The trial court sentenced Gray to a total term of 32 years to life imprisonment.

Gray appeals. He contends (1) the trial court erred by admitting evidence of Gray's two prior convictions for reckless driving while evading a peace officer (§ 2800.2); (2) the court erred by not providing an accomplice instruction to the jury in connection with the great bodily injury sentencing enhancement; (3) the court erred by not providing additional instructions to the jury on causation issues; and (4) the prosecutor erred by misstating the law during closing argument. We conclude Gray has not shown reversible error. We therefore affirm.

FACTS

For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.

Jermaine Gibson was a police officer in Cathedral City, California. On the night of March 18, 2011, Gibson assisted other police officers with a traffic stop. Gray drove by with a passenger, Dexter C., in a black Ford Mustang with its headlights off. After seeing the police cars, Gray turned around quickly and ran a stop sign. Witnessing this unusual behavior, Gibson ran to his police car and began pursuing Gray. Soon other police officers joined the pursuit. They activated their lights and sirens.

Gray led police on an 11-mile chase through Cathedral City and into the City of Palm Springs. Gray kept his headlights off, drove 100 miles per hour through city streets, ran at least one red light, and drove on the wrong side of the road. One witness later said Gray was driving very erratically with "disregard for anyone else that was on the road."

Gibson drove the lead police car following Gray. He called out Gray's position on his police radio and communicated with police dispatch. In order to use the radio, he had to take one hand off the steering wheel.

During the chase, Gibson lost control of his police car at a curve and crashed into a tree. Other police officers who were pursuing Gray saw smoke from the crash and stopped to render aid. Despite their heroic efforts, they were unable to free Gibson from the wreckage. He died in the ensuing fire.

A few blocks away, Gray lost control of his Mustang and crashed as well. He was travelling between 86 and 96 miles per hour at the time of the crash. His passenger, Dexter, was thrown from the car and suffered serious injuries. Gray broke his leg or ankle. At the scene, Gray stumbled around but did not appear concerned about Dexter. A bystander saw that Gray was injured and drove him to a hospital. Gray told the bystander he wanted to go to his mother's house instead of the hospital, but the bystander ignored him. When they got to the hospital, they encountered a police officer who attempted to arrest Gray. The officer ordered Gray to stop, but he tried to flee. The officer grabbed Gray, they both fell to the ground, and the officer handcuffed him.

Dexter was taken to the hospital by emergency personnel. He had suffered a closed head injury and multiple rib fractures. He was comatose for an extended period and placed on a ventilator. In later testimony, Dexter said Gray picked him up on the evening of the crash. Gray was going to drop him off at someone's house in Desert Hot Springs. He had no memory of the police chase or the crash.

Several hours after the crash, a blood sample was taken from Gray. Testing revealed the presence of amphetamine and methamphetamine, cannabinoids, and opiates. At trial, a forensic toxicologist testified the concentration of methamphetamine in Gray's blood was typical value for a methamphetamine user. Amphetamine results from the body's metabolism of methamphetamine. The concentration of cannabinoids in Gray's blood indicated that he probably used marijuana around the time of the police chase. The opioid concentration was consistent with pain medication and slightly below a therapeutic level. In the toxicologist's opinion, the circumstances of the police chase and Gray's crash were consistent with impairment as a result of methamphetamines and marijuana use. The court took judicial notice that Gray had been convicted on two prior occasions of reckless driving while evading a peace officer under section 2800.2.

The California Highway Patrol's Multidisciplinary Accident Investigation Team examined the circumstances of Gibson's crash. The posted speed limit for the curve where the crash occurred was 40 miles per hour. An engineer calculated the design speed of the curve as between 40 and 50 miles per hour. The design speed is the safe speed limit according to the standard design guidelines of the California Department of Transportation. Another engineer calculated the critical speed of the curve as between 88 and 97 miles per hour. The critical speed is the maximum theoretical speed a car could drive through the curve without its tires losing their grip on the road. Based on skid marks and other evidence, the engineer estimated that Gibson was travelling between 72 and 80 miles per hour at the time he lost control of his police car.

Further investigation revealed no mechanical problems with Gibson's police car that would have caused the crash. The cause of the crash was determined to be "oversteering," i.e., steering that was excessive for the speed and caused Gibson's tires to lose their grip on the road. Investigators did not identify any environmental factors that contributed to the accident, and Gibson did not have any drugs or alcohol in his body at the time of the crash.

Gray's defense admitted his guilt on the charges of gross vehicular manslaughter, flight from a peace officer causing death, and driving under the influence with injury. But it argued Gray was not guilty of murder because he did not intend to hurt Gibson, he was not aware that his driving was dangerous to human life, and he did not deliberately act with conscious disregard for human life.

DISCUSSION

I
Evidence of Prior Convictions

Gray contends the trial court erred by admitting evidence of two prior convictions for reckless driving while evading a police officer under section 2800.2. The evidence consisted of the following statement by the court at the end of the prosecution's case in chief: "I shall take judicial notice of our court records in INF038554 that one Durjan Germaine Gray was convicted of a 2800.2 of the Vehicle Code on December 27th of 2001. I shall also take judicial notice of one Germaine Durjan Gray was convicted of a 2800.2 of the Vehicle Code on . . . February 6th, 2003, in INF042738."

In its jury instructions, the trial court stated, "The People presented evidence that the defendant committed the offense of Vehicle Code Section 2800.2, evading a peace officer [and] reckless driving that were not charged in this case." After reciting the elements of the offense, the court told the jury, "If you decide the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with a state of mind or intent to recklessly evade a peace officer or the defendant knew the dangers of driving in a manner that presented an unjustifiable risk of harm when he allegedly acted in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. Do not consider this evidence for any other purpose except for the limited purpose of his intent and knowledge of the alleged actions. . . . Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses of Vehicle Code Section 2800.2, evading a peace officer, recklessly driving, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of Count 1, murder. The People must still prove the charge of murder beyond a reasonable doubt."

"Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of that section, however, provides that such evidence is admissible when relevant to prove some fact in issue, such as motive, intent, knowledge, identity, or the existence of a common design or plan. [¶] 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.] Evidence may be excluded under Evidence Code section 352 if its probative value is 'substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citation.] 'Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value.' " (People v. Lindberg (2008) 45 Cal.4th 1, 22-23 (Lindberg).)

We review the trial court's rulings under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668 (Fuiava).) The court here instructed the jury that the prior convictions were relevant to Gray's intent to evade the police and his knowledge of the dangers of reckless driving while evading the police. We conclude both grounds support the court's exercise of its discretion here.

As to the first ground, Gray's intent, "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

Although the jury was told only that Gray had suffered prior convictions for reckless driving while evading police under section 2800.2, and not the underlying circumstances, those convictions were evidence that Gray's prior conduct satisfied at least the elements of the offense. From these convictions, the jury could reasonably find that Gray operated a motor vehicle, that he willfully fled or otherwise attempted to elude a pursuing peace officer, and that he intended to evade the officer. If Gray intended to evade peace officers when he fled on two prior occasions, the jury could reasonably infer based on that conduct that Gray intended to evade police when he fled on this occasion as well. The court did not abuse its discretion by finding that the prior convictions were relevant to the issue of intent.

Gray argues that it was impossible for the jury to find sufficient similarity without evidence of the underlying circumstances, including the length of the prior pursuits, the speeds driven, the number of police officers involved, the location, and the time of day. We disagree. The facts shown by the elements of the offense are sufficient, in and of themselves, for the jury to make its determination of similarity. The facts Gray suggests are less important in comparison. For example, the fact that the same number of police cars were involved in both occasions has much less bearing on Gray's intent to evade than the fact that Gray willfully fled or attempted to elude police on both occasions. The facts established by the elements of Gray's prior convictions were sufficiently meaningful as to provide the jury with an adequate basis on which to find similarity.[2]

As to the second ground, Gray's knowledge, it is well settled that a prior conviction for certain driving offenses is relevant to a defendant's knowledge that the conduct underlying that conviction is dangerous. "A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving—whether intoxication, rage, or willful irresponsibility—the driver's subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior." (People v. Ortiz (2003) 109 Cal.App.4th 104, 115 (Ortiz); accord, People v. Moore (2010) 187 Cal.App.4th 937, 943 (Moore) ["The jury could reasonably conclude that his prior conviction put him on notice of the consequences of driving with extreme recklessness."]; People v. Johnson (1994) 30 Cal.App.4th 286, 292 (Johnson).) This principle applies equally here. Gray's prior convictions for reckless driving while evading police were probative of his subjective mental state when he engaged in similar conduct here.

Contrary to Gray's claim, this principle is not limited to convictions that resulted in mandatory education regarding the dangers of reckless or impaired driving. "While a defendant's conviction for drunk driving, coupled with participation in a drinking driver program, may, arguably, be more probative than a conviction without such participation on the issue of a defendant's subjective awareness of the risks of drunk driving, a conviction alone is probative on that issue and, thus, is admissible." (Johnson, supra, 30 Cal.App.4th at p. 292; accord, People v. Autry (1995) 37 Cal.App.4th 351, 359.) Gray also claims that the prior convictions were not probative of his knowledge because they do not provide evidence of the underlying acts that led to Gray's convictions. But, as we have discussed, the prior convictions showed that Gray committed the elements of the offense. The fact that Gray evaded peace officers on two prior occasions, and was convicted of crimes based on that evasion, was probative of his knowledge of the dangers of similar conduct here.

Gray alternatively contends that the trial court abused its discretion because the probative value of the prior convictions was substantially outweighed by the danger of undue prejudice under Evidence Code section 352. We disagree. The prior convictions had probative value as to Gray's mental state for both the evading charge and the murder charge. This value was substantial because, among other things, mental state can only be proved by circumstantial evidence. Gray argues the prior convictions had little probative value because they were cumulative of other evidence of Gray's mental state. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 244 ["If the other crimes evidence is merely cumulative of other evidence, then the probative value of the other crimes evidence is diminished."].) While the circumstances of the police chase may have provided abundant other evidence of Gray's intent to evade, the same cannot be said of Gray's subjective knowledge of the dangerousness of his conduct. He argues it is "common knowledge" that a driver must stop when pursued by a marked police car and that high-speed police chases are dangerous. But, however common that knowledge may be, the prosecution had the burden of showing that Gray knew those things. Indeed, Gray's trial counsel disputed whether Gray subjectively knew that his conduct was dangerous to human life. His prior convictions for engaging in the same conduct provided evidence that he subjectively appreciated the dangerousness of recklessly evading police here.

While evidence of prior convictions by its nature always carries some risk of undue prejudice, the evidence in this case was unlikely to be unduly prejudicial beyond that baseline since the fact of the convictions was all that was admitted. There was little chance that the jury would have an emotional or irrational reaction to the bare fact of the prior convictions. And the jury's consideration of Gray's prior convictions was guided by the trial court's comprehensive instructions, which delineated the permissible and impermissible uses of that evidence. (See Lindberg, supra, 45 Cal.4th at pp. 25-26 [jury instructions "eliminated any danger 'of confusing the issues, or of misleading the jury' "].) Under these circumstances, Gray has not shown the court abused its discretion by admitting evidence of Gray's prior convictions. (See Moore, supra, 187 Cal.App.4th at p. 944; Ortiz, supra, 109 Cal.App.4th at pp. 118-119.)

II
Accomplice Instruction

Gray contends the trial court erred by omitting from its jury instructions an element of the great bodily injury sentencing enhancement under Penal Code section 12022.7, subdivision (b). Under that statute, "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years." (Ibid., italics added.) The prosecution alleged this enhancement in connection with the charge of driving under the influence with injury under section 23153, subdivision (a).

The trial court instructed the jury with a modified version of CALCRIM No. 3161, which read, in relevant part, as follows: "If you find the defendant guilty of the crime charged in Count 2, you must then decide whether for the crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury that caused Dexter [C.] to become comatose. [¶] To prove this allegation, the People must prove that, one, the defendant personally inflicted great bodily injury on Dexter [C.] during the commission of the crime and, two, the defendant's acts caused Dexter [C.] to become comatose due to brain injury."

The court's jury instruction omitted a bracketed portion of CALCRIM No. 3161 discussing the victim's status as a potential accomplice. The omitted language includes, as an element of the enhancement, that the victim "was not an accomplice to the crime." Gray's trial counsel did not object to the court's instruction or request that the omitted language be included.

In closing arguments, the prosecutor referenced the accomplice element in his discussion of the sentencing enhancement. He stated, "And the allegation that goes to Count 2, the defendant personally inflicted great bodily injury on Dexter [C.] during the commission of the crime. How did he personally? He was just driving. Driving the way that he did, in the manner that he did, overcorrecting, going through traffic, putting his passenger and community at risk. His passenger was next to him. And then when he crashes, this individual goes into a coma. And that's the reason why Dexter [C.] was in a coma, because of this man's driving, his personal decision to drive. And Dexter [C.] was not an accomplice. He was just a passenger." Gray's trial counsel conceded his guilt on count 2, driving under the influence with injury, but he did not specifically mention the sentencing enhancement.

The verdict forms for the enhancement, which the trial court read to the jury before deliberations, included the accomplice requirement. They read in part as follows: "We, the jury in the above-entitled action, find that the commission of the offense charged under Count 2 of the amended information, the defendant, DURJAN GERMAINE GRAY, with intent to inflict such injury, inflicted great bodily [injury] upon DEXTER C. causing [DEXTER] C. to become comatose due to brain injury or to suffer paralysis of a permanent nature, not an accomplice to the above offense, within . . . Penal Code Section 12022.7, subdivision (b)." The jury returned its true finding on the allegation using the verdict form that included this language.

Although his trial counsel did not object to the trial court's instruction, Gray argues the court had a sua sponte duty to include CALCRIM No. 3161's accomplice language because it is an element of the sentencing enhancement. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith); People v. Cummings (1993) 4 Cal.4th 1233, 1311.) We need not consider whether the court was required to include this language because, even assuming error, we conclude any such error was harmless.

"[A] trial court's failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.' [Citation.] Such error is reversible under [Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)], unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (Sengpadychith, supra, 26 Cal.4th at p. 326.)

To determine whether an error is harmless under this standard, we must " 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' " (People v. Mil (2012) 53 Cal.4th 400, 417.)

Here, the evidence was overwhelming and uncontroverted that Dexter was merely a passenger in Gray's car and not an accomplice to his driving under the influence. Gray drove to Dexter's house, and Dexter believed Gray was taking him to visit someone in Desert Hot Springs. Nothing in the record supports any theory of accomplice liability, e.g., that Dexter intended that Gray drive under the influence causing injury or that Dexter somehow aided or abetted Gray's crime. Indeed, given the nature of the crime and the fact that the alleged accomplice was the injured victim, the factual circumstances that would give rise to an accomplice finding would have to be quite unusual. (See People v. Verlinde (2002) 100 Cal.App.4th 1146, 1160 ["Ordinarily, accomplice liability under a coperpetrator theory or an aider and abettor theory is not associated with the crimes of gross vehicular manslaughter and felony drunk driving because of the individual nature of the act and mental state involved."].) Gray argues that there were "myriad ways" in which Dexter "could have acted as an accomplice" such as "directing [Gray] around traffic, keeping an eye on the pursuing police, or even using a GPS device to get directions." But, as Gray's tentative language suggests, no evidence supports any of these theories. They are pure speculation. Instead, the evidence in the record supports only the conclusion that Dexter was not an accomplice. Because no rational jury could have found in Gray's favor on the omitted accomplice element, any error was harmless beyond a reasonable doubt.

Our conclusion is supported by the references to the accomplice requirement in the prosecutor's closing argument and the court's verdict forms. Although the court omitted this requirement from its instructions, the parties and the jury were aware of the issue. Gray simply did not choose to contest this element or, indeed, any element of the sentencing enhancement. Given this circumstance, and the overwhelming evidence that Dexter was not an accomplice, any error was harmless beyond a reasonable doubt. (See People v. Merritt (2017) 2 Cal.5th 819, 832.)

III
Superseding Causation Instruction

Gray further contends the trial court erred by not providing additional instructions regarding causation, specifically CALCRIM No. 620 regarding a victim's negligence and a pinpoint instruction on superseding causation based on language in People v. Armitage (1987) 194 Cal.App.3d 405 (Armitage). He argues that Gibson's allegedly grossly negligent driving was a superseding cause, and the trial court's jury instructions did not adequately explain the law on that issue.

The trial court instructed the jury on causation in similar terms for each of the charged offenses. For the murder charge, the court told the jury, "An[] act causes death if the death is the direct, natural, and probable consequence of the act and 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 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 trivial or remote factor. However, it does not need to be the only factor that causes death."

CALCRIM No. 620, as Gray requests on appeal, states as follows: "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 Officer Gibson 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 Officer Gibson or another person may have failed to use reasonable care."

Gray's proposed pinpoint instruction based on Armitage consists of the following language: "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act[,] the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. . . . Thus, it is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." (See Armitage, supra, 194 Cal.App.3d at pp. 420-421.)

Gray's trial counsel did not request CALCRIM No. 620 or a pinpoint instruction based on Armitage. He argues that the trial court had a sua sponte duty to give these instructions because they are principles of law " ' "closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) We disagree. Gray does not contend the causation instruction given by the trial court was incorrect. Indeed, it encompasses the principles of proximate cause and foreseeability ("likely to happen") that are discussed in more detail in his proposed instructions. " '[Defendant] does not . . . challenge the content of the . . . instructions given, nor did he request any additional instructions at trial. [¶] Defendant's contention essentially is that the instructions given needed amplification or explanation; but since he did not request such amplification or explanation, error cannot now be predicated upon the trial court's failure to give them on its own motion.' " (People v. Maury (2003) 30 Cal.4th 342, 426; accord, People v. Burnett (2003) 110 Cal.App.4th 868, 875 (Burnett) [" '[W]hen a court has generally instructed on a point, defendant must make a request for a more specific instruction or be deemed to have waived the point on appeal.' "].)

Even if the court erred by not instructing the jury as Gray now requests, the error was harmless under any standard. The first paragraph of CALCRIM No. 620 merely restates verbatim a portion of the instruction the trial court gave to the jury here. The second paragraph of CALCRIM No. 620 explains that the victim's "failure to use reasonable care" does not relieve the defendant of liability if the defendant's conduct was a substantial factor in causing the victim's death. This portion of CALCRIM No. 620 is favorable to the prosecution's case; it does not support Gray's theory that the victim's alleged gross negligence exonerates him. It is clear beyond any reasonable doubt that instructing the jury with CALCRIM No. 620 would not have affected the jury's verdict.

Gray's requested pinpoint instruction explained that "an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause," will relieve him of liability for Gibson's death. (Armitage, supra, 194 Cal.App.3d at pp. 420-421.) " 'In general, an "independent" intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be "independent" the intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '[ ] The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' " ' " (People v. Cervantes (2001) 26 Cal.4th 860, 871.)

As Gray's proposed pinpoint instruction states, the critical factor in deciding whether the victim's conduct is a superseding cause is its foreseeability. If a jury concludes that the victim's death was a foreseeable consequence of defendant's conduct, and therefore proximately caused by defendant, "no further analysis [is] required. The fact that the jury might also have concluded that the conduct of another person, whether simply negligent or grossly negligent, was a contributory cause of the death could not relieve defendant of culpability. Only when the defendant's . . . conduct is a remote cause, and the negligent or reckless conduct of the victim or other party is the sole proximate cause of the death, will the defendant be relieved of culpability." (People v. Pike (1988) 197 Cal.App.3d 732, 748 (Pike).) Indeed, "[t]he conduct of the victim or other third persons, whether negligent or even criminally proscribed, is not, in itself, a defense to crime." (People v. Schmies (1996) 44 Cal.App.4th 38, 46 (Schmies); accord, People v. Brady (2005) 129 Cal.App.4th 1314, 1326 (Brady).)[3]

In People v. Harris (1975) 52 Cal.App.3d 419, the court examined the issue of foreseeability in the context of high-speed police chases. It held that death or injury as a result of such chases is reasonably foreseeable: "[I]t is manifest that defendant could reasonably foresee that his conduct would provoke pursuit by an officer in the performance of his duty [citation] and that it was probable that his conduct of fleeing from the officer at great speeds along city streets would result in a collision, either of his vehicle or that of the officer, with a pedestrian or a third vehicle." (Id. at p. 426, fn. 2.)

Here, based on the evidence presented at trial, no reasonable juror could have found that Gibson's death was an unforeseeable or extraordinary and abnormal occurrence. Gray failed to stop when pursued by police officers, leading them to give chase. He sped along city streets at 100 miles per hour, with his lights off, as he swerved into oncoming lanes and ran at least one red light. Under these circumstances, it is undeniable that any reasonable person would contemplate that the pursuing officers or third parties could be killed in a traffic collision caused by the chase. Indeed, Gray's trial counsel did not deny that Gray's conduct proximately caused Gibson's death. He repeatedly conceded that Gray's driving caused Gibson's death, including in connection with the murder charge. Gray's defense was that he did not intend to kill Gibson or subjectively appreciate the risk of death. Because any reasonable jury would have found that Gray proximately caused Gibson's death, and his death was neither unforeseeable nor extraordinary and abnormal, the absence of an instruction on superseding causes was harmless beyond a reasonable doubt. (See Burnett, supra, 110 Cal.App.4th at p. 879 [failure to instruct on superseding causes was harmless beyond a reasonable doubt]; see also People v. Marlin (2004) 124 Cal.App.4th 559, 570 [victim's speeding and her car's mechanical problems were not superseding causes as a matter of law].)

IV
Prosecutorial Error

Gray contends the prosecutor committed prejudicial error by misstating the law on implied malice. In his rebuttal closing argument, the prosecutor stated, in part, "The law sets out what murder is. He keeps talking about well, this guy didn't know that he was going to put these officers in danger. I don't have to show that. I just have to show that he put the community at risk. And if someone dies as a result of that, whether that be an officer, whether that be somebody on the street, whether that be anyone, that's implied malice murder." Gray claims the prosecutor's reference to "put[ting] the community at risk" misstated the elements of implied malice, which required the jury to find that Gray knew his conduct was dangerous to human life and he deliberately acted with conscious disregard for human life. (See People v. Knoller (2007) 41 Cal.4th 139, 152.)

As an initial matter, we must consider whether Gray forfeited any claim of error because his trial counsel failed to object. " ' "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] A court will excuse a defendant's failure to object only if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (People v. Jackson (2016) 1 Cal.5th 269, 349.) Here, there is no indication an objection would have been futile or an admonition would have been insufficient to cure any harm, and Gray does not argue otherwise. He has therefore forfeited any claim of prosecutorial error.[4]

Alternatively, Gray contends his counsel was ineffective for failing to object to the prosecutor's argument. "A meritorious claim of constitutionally ineffective assistance must establish both: '(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.' " (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt).)

"A court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions." (Holt, supra, 15 Cal.4th at p. 703.) "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581; accord, People v. Weaver (2001) 26 Cal.4th 876, 926.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)

Here, Gray's counsel could reasonably have determined that objecting to the prosecutor's argument would have highlighted the issue in the jury's minds and given the prosecutor an opportunity to explain and amplify his remarks. (See Fosselman, supra, 33 Cal.3d at p. 582.) Or he could have determined that "the risks of raising the objection and offending or annoying the jury outweighed whatever benefit might have been obtained from prosecutorial remarks that were little likely to prejudice his client." (People v. Welch (1999) 20 Cal.4th 701, 754.) Because there were ample rational tactical reasons for not objecting, Gray has not shown his counsel's representation fell below an objective standard of reasonableness.

Even if we were to assume that defense counsel had no rational tactical purpose for not objecting, Gray has not shown a reasonable probability that the outcome of trial would have been more favorable if his counsel had objected. The prosecutor's reference to "put[ting] the community at risk" was fleeting and ambiguous. At other points in his argument the prosecutor recited the correct standards for implied malice. The court's jury instructions recited the correct standards and told the jury to disregard any statements by counsel that conflicted with the court's instructions. Absent evidence to the contrary, we presume the jury followed these instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Under these circumstances, and given the strong evidence of implied malice presented at trial (including Gray's drug use, highly reckless driving, and prior evading convictions), we conclude any assumed deficiency by counsel was not prejudicial. (See Jackson, supra, 1 Cal.5th at p. 350 ["These improper statements spanned a relatively small amount of time in an otherwise proper closing statement that focused solely on the evidence and the law . . . ."]; People v. Dennis (1998) 17 Cal.4th 468, 521.)

V
Cumulative Error

Gray contends the cumulative effect of the trial court's errors violated his due process rights under the federal Constitution. " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436; accord, People v. Merriman (2014) 60 Cal.4th 1, 102.) Here, any assumed errors involved discrete issues and phases of trial. Even considering them together, we cannot say they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) Gray's claim to the contrary is unpersuasive.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.