Opinion
A160851
04-13-2023
The PEOPLE, Plaintiff and Respondent, v. Noe SAUCEDO, Defendant and Appellant.
Law Office of Steven Schorr, Steven Schorr, San Diego, under appointment by the First District Appellate Project, for Defendant and Appellant. Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Melissa A. Meth, Deputy Attorney General, and Amit Kurlekar, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III.–VIII. of the Discussion.
Law Office of Steven Schorr, Steven Schorr, San Diego, under appointment by the First District Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Melissa A. Meth, Deputy Attorney General, and Amit Kurlekar, Deputy Attorney General, for Plaintiff and Respondent.
SIMONS, J. Appellant Noe Saucedo (appellant) appeals following his conviction of various offenses, including two counts of murder and one count of evading a police officer causing injury, after a stolen truck he was driving collided with another truck and killed two young girls. He argues insufficiency of the evidence and presents various claims of evidentiary and instructional error. In the published part of this decision we conclude the trial court erred in admitting testimony regarding numerous minor driving offenses committed by appellant to prove he acted with implied malice, but the error was non-prejudicial. We reverse the conviction for evading but otherwise affirm.
PROCEDURAL BACKGROUND
In November 2018, the Contra Costa County District Attorney filed an information charging appellant with two counts of murder ( Pen. Code, § 187, subd. (a) ; counts one and two); evading a police officer causing injury ( Veh. Code, § 2800.3, subd. (a) ; count three); driving or taking a vehicle without consent ( Veh. Code, § 10851, subd. (a) ; count four); and possessing a controlled substance ( Health & Saf. Code, § 11377 ; count five).
All undesignated statutory references are to the Penal Code.
In October 2019, a jury found appellant guilty as charged.
In July 2020, the trial court sentenced appellant to prison for 15 years to life, consecutive to a term of seven years eight months for the evading offense (seven years) and the taking charge (eight months).
The present appeal followed.
FACTUAL BACKGROUND
On the morning of January 17, 2018, a white Ford F250 pickup truck was stolen from a street in Pittsburg. At some point after noon, sheriff's deputy Quinton Valentine saw the truck leave a gas station parking lot. Deputy Valentine was in a patrol car, and he followed the truck into a fast food parking lot. Valentine noticed the driver of the truck, who he identified as appellant, look back at him in the truck's mirrors. Deputy Valentine followed the white truck onto Highway 4 East. He noticed the truck's brake lights were working. The deputy followed appellant two to three car lengths behind. He did not initiate a traffic stop or pursuit (in which he would use lights and sirens) because he needed to wait for backup. The deputy continued to follow appellant, who drove at the speed of traffic, about 65 to 70 miles per hour. No other car was between the patrol car and the truck, and the deputy followed appellant's lane changes.
As appellant approached the exit for Somersville Road, he moved into the exit-only lane, and then he changed lanes again to stay on the freeway. Deputy Valentine followed appellant's lane changes. An eyewitness said it appeared the patrol car was purposely changing lanes when the truck did in order to follow the truck.
The truck then almost passed the exit ramp and "nearly to the last minute ... swerved in an abrupt manner" onto a "little dirt embankment" and then "back onto the exit ramp for Somersville." When Deputy Valentine saw that, he followed down the ramp, radioed dispatch that he was in pursuit, and activated the patrol car's overhead lights and sirens. The officer was about 15 car lengths behind appellant at that point.
The white truck accelerated as it went down the exit ramp, from about 55 to about 70 to 80 miles per hour. An eyewitness testified it appeared the truck was trying to get away. Another eyewitness testified, "It was definitely faster than what a vehicle would be going down a ramp usually, absolutely." The truck's brake lights did not activate as it sped down the ramp.
There was a traffic light showing red in appellant's direction at the end of the exit ramp. The truck sped through the red light and crashed into a silver Ford F150 truck that was driving on Somersville Road. The silver truck was smaller than the white truck. The crash was "[v]ery, very loud"; it "[s]ounded like a bomb going off." The impact of the collision pushed the silver truck over a large raised median and into the oncoming traffic lanes. The white truck stopped in the median. Debris scattered everywhere; it looked like there had been "an explosion."
Deputy Valentine radioed to broadcast that a collision had occurred at the intersection of Somersville Road and Highway 4. That broadcast was about two to five seconds after he initiated pursuit.
The driver of the silver truck, Edith R., was unconscious after the crash. She arrived at the hospital with a deformity of the left arm bone, a forehead laceration, and tenderness to her left knee. Tests revealed a broken arm, rib fractures, and a trace of a hemorrhage in her abdomen. She was admitted to intensive care and discharged two days later.
Edith R.’s two young daughters, Jane Doe 1 and Jane Doe 2, were in car seats in the backseat of the silver truck. Jane Doe 1 was four years old and Jane Doe 2 was two years old. Jane Doe 1 was on the passenger side of the truck, which suffered the most impact. That side was pushed in over a foot, which indicated a "large amount of impact force." One of the first responders testified, "Most modern vehicles, [ ] if they have intrusion, it's from extreme speed of impact.... [A]nd this definitely had it. Pickup trucks like F150's don't usually show that, they are pretty heavy robust vehicles..." Jane Doe 1 was taken to one hospital and then transferred to a second; she was pronounced dead at the second hospital. An autopsy revealed bruising and abrasions on various parts of her body. Her jaws and nose were fractured, she had other facial injuries, and the right side of her head had a "large" depressed skull fracture ; it takes a lot of force to create such a fracture. Her brain was swollen and had surface and internal hemorrhages. Jane Doe 1 died from blunt force head injury due to the car accident.
Jane Doe 2 arrived at the hospital in a coma with a very severe brain injury. She was pronounced dead due to "full brain death" on January 19, 2018. An autopsy revealed that, among other things, Jane Doe 2 had swelling of the brain and three large bruises on her scalp from the blunt force of the accident. Her brain injuries would have taken "quite a bit of force" to produce. The cause of death was blunt force head injury. Appellant was ejected out of the driver's side window of the white truck. He did not have any apparent injuries. He initially was unconscious, but then it appeared to a police officer on the scene that he was pretending to be unconscious. As he was put in the ambulance, appellant was alert and complained of pain, but uncooperative. At the hospital, appellant did not follow commands during an examination, but it appeared he was doing so volitionally, rather than due to an injury. He had a hematoma and bruise on his scalp but "minimal other signs of traumatic injury." He was discharged later the same day.
Deputy Valentine found two bags containing methamphetamine in appellant's pants pocket. A test of appellant's blood was positive for methamphetamine and amphetamine (a metabolite of methamphetamine). An expert in drug impairment opined that a person with appellant's level of methamphetamine in their system would be under the influence. At that level, the drug would be "having a visible [e]ffect on them," but the person could still function. The quantity in appellant's system was "about in the middle of the parameters for recreational use." Methamphetamine can speed up a person's thought process and make it difficult for them to concentrate. Generally, a person under the influence of methamphetamine is hyper-animated in their speech and physical activity.
The collision was described as a "broadside" or "T-bone" collision. It was a "heavy front-end collision," and the entire front portion of the white truck was damaged. The right front wheel had detached, and the battery had detached and was thrown from the truck. The damage showed the collision occurred with "very great force." Inside the vehicle, the steering column appeared to have been tampered with, the ignition was drilled through or removed, and the stereo was missing. Prior to the collision, the truck's braking system worked. Investigators collected from the truck an empty beer can, a broken glass pipe, and a set of keys with several shaved or bent keys. Shaved keys can be used for stealing vehicles.
The right side of the silver truck suffered damage from front to back. A structural support in the middle of the truck was bent back "at a pretty sharp angle."
Appellant's Prior Driving and Methamphetamine Offenses
The jury also heard evidence about nine prior driving and methamphetamine offenses committed by appellant between 2013 and the day before the 2018 collision.
First, in June 2013, appellant was pulled over for speeding. He was driving 74 miles per hour in an area with a speed limit of 55 miles per hour. Appellant did not have a driver's license. He received citations for speeding and driving without a license.
Second, in August 2013, appellant was pulled over for making an "unsafe start" after an officer observed him accelerating rapidly and causing a truck's tires to spin and "burn out." Appellant told the officer the gas pedal "got stuck." Appellant was in possession of a bindle of methamphetamine and a pipe of a kind commonly used for smoking methamphetamine. Appellant was arrested for possession of methamphetamine and the pipe.
Third, in August 2014, appellant was arrested at a house for possession of methamphetamine. Appellant told the officer that when he used methamphetamine the high would last two to three days and he usually stayed awake for days. Appellant also had a pipe and a shaved car ignition key. Appellant said he found the key at a park, and he admitted knowing it was for stealing cars.
The year was also identified as 2015. It is immaterial whether the incident happened in 2014 or 2015.
Fourth, later in August 2014, appellant was a passenger in a vehicle that was stopped by the police. Appellant was arrested for possession of methamphetamine.
Fifth, in December 2014, a police officer pulled appellant over for making a right turn against a red light without coming to a full stop. Appellant was in possession of marijuana and a methamphetamine pipe, and had a suspended license. Appellant was cited for driving with a suspended license and possessing marijuana, and the car was towed.
Sixth, in April 2016, appellant was pulled over because the vehicle he was driving was missing a license plate. Appellant was in possession of methamphetamine, a pipe, and shaved keys. Appellant was arrested for possessing methamphetamine, drug paraphernalia, and burglary tools.
Seventh, in September 2017, appellant failed to stop completely at a stop sign. The car's registration was expired and it had a fake registration sticker. Appellant admitted he had pulled the sticker off a car in a junkyard. Appellant was in possession of methamphetamine and a pipe, and was arrested.
Eighth, in October 2017, appellant was pulled over for "roll[ing] through" a stop sign. The officer discovered appellant's license was suspended, and appellant received citations for failing to stop at a stop sign, driving on a suspended license, and failing to have proof of insurance. Appellant's car was towed. Ninth, on January 16, 2018, the day before the collision, appellant was pulled over for "driving on the sidewalk, and kind of passing ... stopped traffic [at a] light." The car's registration was expired and appellant's license was suspended. Appellant was cited for the suspended license and the car was towed.
DISCUSSION
I. There Was Sufficient Evidence of Implied Malice
Appellant contends his convictions for the second degree murders of Jane Doe 1 and Jane Doe 2 were not supported by substantial evidence that he acted with conscious disregard for human life. We reject the contention.
In considering a challenge to the sufficiency of the evidence, we "review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Albillar (2010) 51 Cal.4th 47, 60, 119 Cal.Rptr.3d 415, 244 P.3d 1062.) "[S]econd degree murder based on implied malice has been committed when a person does ‘ " ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ "....’ " ( People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279 ; see also § 188, subd. (a)(2) ["Malice is implied ... when the circumstances attending the killing show an abandoned and malignant heart."].) "The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of ‘ "an act, the natural consequences of which are dangerous to life." ’ [Citation.] The mental component ... involves an act ‘ "deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." ’ " ( People v. Nieto Benitez (1992) 4 Cal.4th 91, 106–107, 13 Cal.Rptr.2d 864, 840 P.2d 969 ( Nieto Benitez ).) "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." ( People v. Knoller (2007) 41 Cal.4th 139, 143, 59 Cal.Rptr.3d 157, 158 P.3d 731.)
"It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence." ( People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697, 107 Cal.Rptr.3d 576 ( Costa ).) Further, "our courts have recognized that there is no particular formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach." ( Id. at p. 698, 107 Cal.Rptr.3d 576.)
Appellant mistakenly argues "the evidence presented below ... primarily consisted of prior traffic violations." The evidence allowed the jury to infer that appellant knowingly possessed a stolen truck and attempted to evade capture by suddenly veering off the freeway, accelerating down the exit ramp, and careening through a red light without attempting to brake. (See, e.g., People v. Moore (2010) 187 Cal.App.4th 937, 941, 114 Cal.Rptr.3d 540 ( Moore ) [in discussing evidence of implied malice, noting the defendant "ran a red light and struck a car in the intersection without even attempting to apply his brakes"]; People v. Lima (2004) 118 Cal.App.4th 259, 267, 12 Cal.Rptr.3d 815 ( Lima ) [in discussing evidence of implied malice, emphasizing the defendant fled from the police at high speeds].) The evidence further showed that appellant was under the influence of methamphetamine, knew that he would stay high for days, and must have known methamphetamine affected his decisionmaking and ability to concentrate. (See People v. Murphy (2022) 80 Cal.App.5th 713, 727, 295 Cal.Rptr.3d 887 ( Murphy ) ["numerous appellate courts have upheld murder convictions in cases where defendants have committed homicides while driving under the influence of alcohol and other controlled substances"]; see also People v. Bennett (1991) 54 Cal.3d 1032, 1038, 2 Cal.Rptr.2d 8, 819 P.2d 849 ( Bennett ) [" ‘There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated.’ "]; accord, People v. Johnigan (2011) 196 Cal.App.4th 1084, 1091, 128 Cal.Rptr.3d 190 ( Johnigan ).) The jury could reasonably infer that by getting behind the wheel while high on methamphetamine and then attempting such a risky escape appellant was acting "with conscious disregard for life." ( Nieto Benitez , supra , 4 Cal.4th at pp. 106–107, 13 Cal.Rptr.2d 864, 840 P.2d 969.) Appellant points out he did not drive dangerously before he abruptly veered off the freeway, but appellant's safe driving before he decided to flee is not inconsistent with a finding he consciously drove dangerously when he did try to escape. Appellant points out there is little evidence from which the jury could infer that he saw the lights on Deputy Valentine's patrol car once pursuit commenced. While we conclude there is insufficient evidence on that point to support the conviction for evading a police officer causing injury (see Part VIII, post ), there was sufficient evidence from which the jury could reasonably infer that appellant was aware a patrol car was following him. In particular, Deputy Valentine testified appellant looked back towards the deputy in both his left and rearview mirrors when the deputy was behind appellant in a parking lot. The evidence showed the patrol car closely tracked the movements of the white truck, including mirroring lane changes. For the most part, the patrol car was only two or three car lengths behind, and there were no cars between the white truck and the patrol car. And, of course, appellant's abrupt and reckless freeway exit itself is strong evidence he was aware he was being followed. It was not necessary that appellant saw the patrol car's lights in order for the jury to infer appellant drove dangerously in order to avoid being stopped by the authorities in a stolen vehicle.
Appellant argues for the first time in his reply brief that there was no evidence appellant stole the truck or knew it was stolen. That argument has been forfeited. (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273–1274, 152 Cal.Rptr.3d 914 (Proctor ).) In any event, appellant does not challenge the sufficiency of the evidence for his conviction of driving or taking a vehicle without consent (Veh. Code, § 10851 ), and the jury could reasonably infer from the record that appellant knew the truck was stolen.
Appellant also points out that this case does not involve the relatively longer course of dangerous driving involved in a number of previous vehicular homicide cases. (See, e.g., Moore , supra , 187 Cal.App.4th at pp. 939–940, 114 Cal.Rptr.3d 540 ; Lima , supra , 118 Cal.App.4th at pp. 263–264, 12 Cal.Rptr.3d 815 ; People v. Contreras (1994) 26 Cal.App.4th 944, 956–957, 31 Cal.Rptr.2d 757 ; People v. Fuller (1978) 86 Cal.App.3d 618, 628–629, 150 Cal.Rptr. 515.) However, the tragic circumstance that appellant almost immediately collided with another motorist does not preclude a finding that appellant's driving immediately prior to the collision demonstrated implied malice. Appellant's brief dangerous driving was every bit as dangerous as the driving involved in the prior cases; the facts in the present case need not closely track those in the prior cases. (See Costa , supra , 183 Cal.App.4th at p. 698, 107 Cal.Rptr.3d 576.)
In his reply brief, appellant also attempts to distinguish Moore on the basis that the defendant in that case made callous remarks when he was arrested. (Moore , supra , 187 Cal.App.4th at p. 940, 114 Cal.Rptr.3d 540.) However, the court did not rely on those remarks in its implied malice analysis. (Id. at pp. 941–942, 114 Cal.Rptr.3d 540.)
Appellant also argues for the first time in his reply brief that the circumstance that he was under the influence of methamphetamine is not significant because it does not mean he was "impaired" or could not "function." That argument has been forfeited. ( Proctor , supra , 213 Cal.App.4th at pp. 1273–1274, 152 Cal.Rptr.3d 914.) In any event, just because the evidence did not show that appellant had a high level of impairment does not mean that his intoxication had no effect on his driving or decision making. Driving is one of the most complex and potentially dangerous tasks that individuals undertake on a regular basis. Appellant's decision to drive while high strongly supports the jury's finding of implied malice. ( Bennett , supra , 54 Cal.3d at p. 1038, 2 Cal.Rptr.2d 8, 819 P.2d 849 ; Murphy , supra , 80 Cal.App.5th at p. 727, 295 Cal.Rptr.3d 887 ; Johnigan , supra , 196 Cal.App.4th at p. 1091, 128 Cal.Rptr.3d 190.)
Finally, and at greatest length, appellant argues the evidence of his prior driving offenses did not provide a basis for the jury to infer he had subjective awareness of and conscious disregard for the risk to life posed by his driving. We agree with appellant that the prior incidents involved in the present case are not analogous to those involved in prior cases that have relied on a defendant's driving history to support a finding of implied malice. As appellant points out, a jury may infer from prior instances of reckless driving that "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, 134 Cal.Rptr.2d 467 ( Ortiz ).) As we address below (Part II, post ), there is no evidence that in any of his prior driving incidents appellant was prosecuted or obligated to attend a class regarding the dangers of reckless or intoxicated driving, and none of the prior incidents actually involved any danger to life. Nevertheless, as is evident from the analysis in the preceding paragraphs, the evidence was sufficient to support a finding of implied malice without any consideration of appellant's driving history . (See Johnigan, supra, 196 Cal.App.4th at p. 1091, 128 Cal.Rptr.3d 190 ["there is no requirement of a ‘predicate act,’ i.e., a prior DUI or an alcohol-related accident necessary to establish implied malice"].) The circumstance that appellant's prior driving history was not probative does not establish that insufficient evidence supports the finding of implied malice.
In Part II, post , we conclude the trial court erred in admitting evidence of the incidents, but the error was harmless.
II. The Trial Court Erred in Admitting Evidence of Certain Prior Traffic Offenses, But the Error Was Not Prejudicial
Appellant contends the trial court abused its discretion by admitting evidence of appellant's prior traffic offenses as proof of implied malice. We agree; the general rule excluding evidence of uncharged misconduct has significant clarifications and exceptions limiting its application, but none is broad enough to justify the trial court's ruling. The evidence should have been excluded, but it is not reasonably probable the error affected the outcome of the trial.
Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of specific instances of a person's conduct "to prove his or her conduct on a specified occasion." Section 1101, subdivision (b), however, clarifies this rule by allowing "admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as ... intent, ... knowledge, ... absence of mistake or accident ...) other than his or her predisposition to commit such an act." "Although a prior criminal act may be relevant for a noncharacter purpose to prove some fact other than the defendant's criminal disposition, the probative value of that evidence may nevertheless be counterbalanced by [an Evidence Code] section 352 concern. 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.’ " ’ " ( People v. Hendrix (2013) 214 Cal.App.4th 216, 238, 153 Cal.Rptr.3d 740 ( Hendrix ).)
A. Background
In the present case, prior to trial, the prosecution moved to admit evidence of appellant's prior driving offenses "as evidence of knowledge to prove the subjective intent of the defendant." The prosecution argued the incidents were relevant "to the subjective knowledge of implied malice as it tends to show that the defendant's arrests, prosecutions, convictions, probations, and license suspensions would clearly demonstrate the dangerousness of drunk [sic] driving given the consequences the defendant faced on the prior occasions." The trial court ultimately admitted evidence of the nine incidents summarized in the factual background portion of this decision, some pursuant to the motion in limine and some at trial.
As is evident from this decision's summary of the facts, there is no evidence in the record of any "prosecutions, convictions, probations" or other "consequences" suffered by appellant due to the prior driving offenses.
The trial court instructed the jury regarding the purposes for admission of the evidence using CALCRIM No. 375. The court told the jurors that, if they decided appellant committed the acts described in the incidents, the jurors "may, but are not required to, consider that evidence for the limited purpose of deciding whether ... The defendant's prior acts of speeding, spinning tires, failing to stop at a stop sign, driving on a sidewalk and stopping in an intersection, running a red light and driving without a license are evidence of implied malice when he acted in this case. [And whether t]he driving on the sidewalk evidence is evidence of the defendant's knowledge of the danger of such driving."
Additionally, the court instructed the jurors they could consider evidence that appellant previously possessed shaved keys for the "limited purpose of deciding whether" appellant "acted with the intent to deprive the owner of the vehicle of possession or ownership of the vehicle" and as "evidence of knowledge of the use of shaved keys." The jurors could consider "evidence of the prior use and/or possession of methamphetamine as evidence of the defendant's intent to evade the peace officer" and as "evidence of knowledge of the character and effect of illegal drugs."
The trial court further instructed that, "In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. [¶]Do not consider this evidence for any other purpose. [¶]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 acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each charge beyond a reasonable doubt." B. Analysis
Appellant contends the instruction lessened the prosecutor's burden of proof. That objection has been forfeited because the instruction is not an incorrect statement of the law and appellant did not object below or request modifications to the instruction. (People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012, 44 Cal.Rptr.3d 632, 136 P.3d 168 ; see also People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 436, 178 Cal.Rptr.3d 185, 334 P.3d 573 [stating that similar instruction, CALJIC No. 2.50, is "in general, a correct statement of the law"].) In any event, the instruction did not lessen the burden of proof because it only told the jurors they "may, but are not required to, consider" the incidents as relevant to the issue of implied malice. (See id. at p. 437, 178 Cal.Rptr.3d 185, 334 P.3d 573.) The instruction also told the jurors any such prior incidents were "only one factor to consider" and emphasized that "[t]he People must still prove each charge beyond a reasonable doubt."
In Ortiz, supra, 109 Cal.App.4th at p. 110, 134 Cal.Rptr.2d 467, the court of appeal considered in detail the prosecution's use of " ‘uncharged misconduct’ " or " ‘uncharged bad acts’ " to prove implied malice. ( Id. at p. 110, 134 Cal.Rptr.2d 467.) In that case, the "challenged evidence consisted of documentary and oral testimony concerning seven past incidents in which defendant had either been convicted of reckless driving, convicted of reckless drunk driving, or been observed driving recklessly, and his participation in a mandatory educational program ... on the dangers of drinking and driving." ( Ibid. ) The prosecution there argued, as the prosecution did in the present case, "that the evidence was relevant because it tended to establish a subjective awareness on the part of defendant of the disastrous consequences that can follow in the wake of recklessly operating a motor vehicle on a public highway." ( Id. at p. 111, 134 Cal.Rptr.2d 467.)
The Ortiz court reviewed cases decided since the Supreme Court upheld a drunk driver's conviction of second degree murder in People v. Watson , supra , 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279. The Ortiz decision held the challenged evidence was properly admitted, even though there was no evidence of intoxication in the incident underlying the appeal. ( Ortiz , supra , 109 Cal.App.4th at p. 112, 134 Cal.Rptr.2d 467.) The court of appeal summarized the rationale for admitting the uncharged conduct as follows: "courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway—whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum." ( Id. at pp. 112–113, 134 Cal.Rptr.2d 467 ; see also id. at pp. 113–115, 134 Cal.Rptr.2d 467 [summarizing cases].) The court continued, "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 wilful 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." ( Id. at p. 115, 134 Cal.Rptr.2d 467.)
Appellant argues, and we agree, that the inference described by the Ortiz court is not one a jury could permissibly make from the prior incidents at issue in the present case. None of the prior incidents involved driving as dangerous as the driving that killed Jane Doe 1 and Jane Doe 2. There is no evidence that appellant injured anyone in any of the prior incidents, or that he came close to injuring anyone. (Cf. People v. Eagles (1982) 133 Cal.App.3d 330, 340, 183 Cal.Rptr. 784 ["Evidence of excessive speed resulting in a near collision is relevant to knowledge of risk ... of excessive speed."].) There is no evidence that appellant suffered any serious consequences, such as prosecution and incarceration, for any of the prior traffic violations. And there is no evidence appellant was ever required to attend any educational programs about the dangers of reckless driving or driving under the influence. In sum, none of the incidents admitted at trial were "encounters with the consequences of recklessness on the highway" from which jurors could reasonably infer appellant was "sensitize[d] ... to the dangerousness of such life-threatening conduct." ( Ortiz , supra , 109 Cal.App.4th at pp. 112–113, 134 Cal.Rptr.2d 467.) Accordingly, the trial court erred in admitting, as described in the instruction, evidence of appellant's "prior acts of speeding, spinning tires, failing to stop at a stop sign, driving on a sidewalk and stopping in an intersection, running a red light and driving without a license."
Nevertheless, appellant was not prejudiced by admission of the evidence of his prior driving offenses. As explained previously (Part I, ante ), the evidence supports the finding of implied malice without consideration of any of his prior driving conduct. Furthermore, because the prior acts did not involve any clearly dangerous driving, they did not have an inherent tendency to prejudice the jury against appellant. Even assuming jurors disregarded the trial court's instruction not to consider the incidents as evidence of appellant's propensity for bad driving, the incidents only involved relatively minor traffic infractions. Although the incidents reflected appellant's disregard for abiding by the requirement that he only drive with a valid driver's license, he also cooperated with the police in all the incidents described at trial. Indeed, defense counsel highlighted that evidence in suggesting that, because appellant had cooperated with the police previously, it was unlikely he was trying to flee when he went down the exit ramp prior to the collision in the present case. It is not "reasonably probable" the outcome would have been more favorable for appellant had the prior driving offenses evidence been excluded. ( People v. Benavides (2005) 35 Cal.4th 69, 91, 24 Cal.Rptr.3d 507, 105 P.3d 1099.)
We observe that appellant does not contend the court erred in admitting evidence of appellant's possession of methamphetamine, related paraphernalia, and shaved keys. Only three of the seven prior driving incidents did not involve such possession (in two of the nine prior incidents appellant was not driving a car). Accordingly, even if the trial court had excluded evidence of appellant's driving conduct, testimony about some aspects of the incidents at issue would have been admissible at trial.
See footnote *, ante .
DISPOSITION
The conviction on count three, for evading a police officer causing injury ( Veh. Code, § 2800.3, subd. (a) ), is reversed. The jury's verdicts are otherwise affirmed. The matter is remanded for resentencing.
We concur.
JACKSON, P. J.
Judge of the Napa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.