People v. Core CA2/7 ( 2021 )

Filed 7/27/21 P. v. Core CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B302551
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA072950)
v.
RICHARD NORMAN CORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charles A. Chung, Judge. Affirmed.
Elizabeth K. Horowitz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
Richard Norman Core appeals from a judgment entered
after a jury convicted him of second degree murder. Core drove a
tractor-trailer truck that veered onto the sidewalk and hit and
killed a pedestrian before crashing into a building. Core contends
the trial court committed prejudicial error by failing to instruct
the jury on vehicular manslaughter as a lesser included offense of
murder because the failure to do so violated the Equal Protection
Clause of the United States and California Constitutions (U.S.
Const., 14th Amend., § 1; Cal. Const., art. I, § 7) notwithstanding
the Supreme Court’s holding in People v. Sanchez (2001)
24 Cal.4th 983, 992 (Sanchez), overruled on another ground in
People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, that vehicular
manslaughter is not a lesser included offense of murder.
Core also argues the trial court erred in admitting course
materials from a drug rehabilitation program he attended,
photographs of the victim, and unreliable expert testimony.
Further, he contends the prosecutor committed multiple
instances of prejudicial misconduct during his closing argument.
In addition, Core contends there was not substantial evidence he
was subjectively aware of the danger of driving while under the
influence of methamphetamine to support the implied malice
murder conviction. Finally, Core requests we review the sealed
record of the trial court’s in camera hearing to determine whether
the court disclosed all relevant complaints in response to his
Pitchess1 motion seeking discovery of a California Highway Patrol
officer’s personnel records. We affirm.
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-538
(Pitchess).
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution Case
1. The day before the crash
Core was employed by Abe’s Trucking, Inc. The owner,
Abraham Gutierrez, testified his company maintained its trucks
and kept them in good mechanical order because “[i]f they are not
safe, they could cause an accident.” Gutierrez stated that on
June 22, 2017, the day before the accident, Core picked up a load
from Long Beach, California to drive it to Texas. Core was
supposed to take Interstate-10 East to get to Texas. According to
Gutierrez, Santa Clarita was not on the route.
At about 10:00 a.m. on June 22 California Highway Patrol
Officer Brian Powers and his partner Officer Clive Sheen
received a call concerning a truck blocking a road lane and being
“high centered in [a] parking lot” in Santa Clarita. The truck
driven by Core (a tractor-trailer) was stuck in the parking lot of a
restaurant because “the trailer had gotten caught up on the high
point” of the driveway.2 The tractor was partially blocking the
number three lane of the road and the trailer was backed into the
driveway. After the officers called a tow truck, they “did the
whole complete walk around of the truck.” Officers Powers and
Sheen did not see anything about the truck that would make it
dangerous to drive or cause it to drive off the road.
2 Officer Powers explained that a “driveway has a slight
elevation and then a decline so there is a high point in there. The
truck [and] the trailer had gotten caught up on that high point,
. . . what they call high centered. So it was unable to move
. . . because the front of the truck was down and the trailer was
down and the middle of the trailer got stuck.”
3
Officer Powers also reviewed Core’s log book.3 He asked
Core “why there [were] discrepancies” because Officer Powers
“found a receipt saying that the load was picked up at a certain
time but that wasn’t documented on the log book correctly.” Core
acknowledged “the hours didn’t match up with what [Core] had in
his log book.” Core told Officer Powers he had gone to the current
location to sleep in his truck in a sleeper berth. Officer Powers
explained, “[Core] said that he had been up for a while. And like
I said, it didn’t coincide with what his log book said. So based on
the fact that there was a bunch of inconsistencies I had to place
him out of service for that.” Officer Powers took Core out of
service at 10:00 or 11:00 a.m. for a minimum of 10 hours.
Officer Powers, who had training in roadside impairment
detection and had made over 400 arrests of people driving under
the influence (DUI), did not think Core was impaired. Officer
Powers testified, “[Core] was running around frantic. It was kind
of a hot morning. Sweating. I didn’t get any impairment at that
time.” But when asked if Core appeared tired, Officer Powers
answered, “[H]e did appear a little bit tired but most of the time
mostly he was frantic. Just running around.” On cross-
examination, Officer Powers reiterated that Core “seemed
fatigued.” Officer Powers explained what he meant by fatigued,
“Just tired. [Core] said he had been working on trying to get the
truck unstuck for hours. So just trying to do all that. Obviously
3 According to Officer Powers, a log book “is a daily record
that commercial drivers are required to do” by the federal and
state governments that “documents their hours that they
drive . . . so they don’t get too tired and thus cause a collision
because they are driving fatigued.”
4
that is a lot of physical labor trying to move that truck. Fatigued
in that way.”
2. The crash, investigation, and arrest
The following morning, on June 23, 2017, Core was driving
on Palmdale Boulevard in Palmdale when his truck jumped a
sidewalk curb and hit and killed a pedestrian, Gary Burris,
before crashing into a building. Los Angeles County Sheriff’s
Deputy Rowell Quemuel, a traffic investigator and certified drug
recognition expert, arrived at the scene at approximately 6:15
that morning. Deputy Quemuel “saw a tractor trailer in a jack
knifed position on the south curb line of Palmdale Boulevard.”
He testified, “I saw a lot of damage to business storefronts. A lot
of breaks, a lot of truck damage, and also a trailer with a big
cargo box on the back of it.”
Core was sitting on the back of the trailer holding a lit
cigarette. Deputy Quemuel allowed Core to smoke for a minute
“based on [Core’s] shock” but then asked him to extinguish the
cigarette. At first Core “didn’t do anything” and seemed to be in
“a state of confusion.” After a second request, Core complied.
Deputy Quemuel explained, “[Core] seemed very out of it.
Seemed like he was in shock. Had his head down. Seemed
confused. Lost. Almost lethargic.” Deputy Quemuel asked Core
“if he was the driver[,] and he didn’t answer.” Deputy Quemuel
added, “I asked him what happened and he still had his head
down. Didn’t seem to understand or acknowledge that I was
asking him a question.” Further, Core did not answer when
Deputy Quemuel “asked him if he was injured and if he needed
any type of medical attention.” But Deputy Quemuel added,
“After about three times I asked him what had happened and he
5
said to me that his truck lost control and somehow veered to the
right and that’s when he drove up the curb.”
As part of the standard procedure for a fatal collision
investigation, Deputy Quemuel asked Core to take field sobriety
tests to determine whether Core was impaired. Core did not
agree to take the tests despite three requests. As Deputy
Quemuel explained, “The first time I remember he didn’t respond
to me. He had his head down. The second time he looked at me
kind of in a daze. And then the third time, if I remember
correctly, he asked for his lawyer.” However, Deputy Quemuel
acknowledged at trial the field sobriety tests were not mandatory.
Deputy Quemuel also twice asked Core to take a blood test. After
the second request, Core agreed to submit to the test.
Deputy Quemuel examined the accident scene “to see
where the truck may have gone off the road.” He did not see any
obstruction in the roadway that would have caused the truck’s
wheels to jerk or turn. Deputy Quemuel then spoke with Core for
about an hour. Deputy Quemuel explained, “Towards the end of
my time with him he began to come around and acknowledge the
questions that I was asking him, and that’s when he finally
agreed to submit to the chemical sample, the blood sample, and
asked what we were going to do with his dog.” Core had his dog
with him tied to a leash, and he was “very concerned about his
dog.” Core wanted to know where his dog would go if he took a
blood test. Deputy Quemuel added, “At one point towards the
end of my contact with him . . . he mumbled, ‘I know I messed up.
I know my life is over.’”
On cross-examination, Deputy Quemuel acknowledged
Core was responsive to questions about where Core was coming
from, where he was going, and the street and direction he was
driving. Deputy Quemuel also admitted Core seemed lethargic to
6
him in part because Core did not make eye contact. Deputy
Quemuel did not suspect Core was under the influence or had
ingested alcohol or drugs.
On redirect examination, Deputy Quemuel testified Core’s
demeanor was different from other people with whom he had
spoken after a vehicle accident. Deputy Quemuel stated, “If I
were to ask somebody their name or their license, registration at
the scene of a collision, somebody normally would give it to me
right away.” He added, “Even if they were in shock. They would
be a little confused but they would have an idea of what I’m
asking them.”
Los Angeles County Sheriff’s Deputy Kyle Efflandt arrived
at the scene the morning of the accident. He obtained a recorded
statement from Core,4 who stated, “I was traveling eastbound on
138, roughly 45, 40 miles an hour. I came through the
intersection, I was in the right lane, and, everything appeared to
be fine. I know I had some overhang. And I, I don’t know what
happened. I don’t know if I, my load caught something on the
side, or my tire caught something on the side, but the steering
wheel just jerked to the right and was ripped out of my hand, and
turned me into the building. That’s where I ended up. I just
ducked and held on.” Deputy Efflandt did not note in his traffic
collision report any signs that Core was under the influence of
alcohol or drugs. However, Deputy Efflandt marked on the
report that Core was sleepy or fatigued. Deputy Efflandt based
this notation on Core’s statement, in response to Deputy
Efflandt’s inquiry, that “he was just tired from waking up early.”
On cross-examination, Deputy Efflandt acknowledged he only
4 The prosecutor played the video of Core’s statement for the
jury.
7
spoke with Core briefly. Deputy Efflandt added, “He was just
[shaken] up from the accident. He was slow to respond and I took
that as he was just involved in a serious accident.”
Los Angeles County Sheriff’s Deputy Eduardo Saucedo, a
traffic investigator, was in charge of the traffic collision
investigation. He took photographs of the truck on the day of the
crash. Deputy Saucedo described one photograph (exhibit 13)
showing “the trailer along the curb and the tractor facing
southbound on the sidewalk.” The photograph also depicted
white sheets on the ground that covered Burris’s remains.
Deputy Saucedo took another photograph of the accident scene
after the tractor was removed from the sidewalk by a tow truck
(exhibit 17), which he testified showed a fluid leak on the ground.
Another photograph (exhibit 16) showed the remains of Burris on
the sidewalk under fallen bricks from the building.5 Deputy
Saucedo spoke with Core for “[a] few minutes” at the accident
scene. Core seemed distraught, but Deputy Saucedo did not
believe Core was under the influence of any drug.6
Deputy Saucedo searched the truck after it was impounded.
He found two eyeglass cases containing “a few bindles of
methamphetamine” and two used glass pipes. A criminalist
performed a chemical analysis on the off-white solid recovered by
Deputy Saucedo and determined it was 3.47 grams of a solid
substance containing methamphetamine. Two criminalists
performed chemical analyses of Core’s blood sample and found it
5 Deputy Saucedo described the photographs, but he did not
display them for the jury.
6 Deputy Saucedo was previously a drug recognition expert,
but he was no longer certified.
8
contained 25 nanograms per milliliter of amphetamine and 250
nanograms per milliliter of methamphetamine; it did not contain
any alcohol.
Eight to 10 months after the crash Deputy Saucedo
received Core’s toxicology report, at which time Core was
arrested. The prosecutor played a video of Core’s booking for the
jury. Core stated in the booking video, “I was running about
130,000 pounds, and went over a set of railroad tracks, and the
load dropped, and something mechanical in the truck broke, and
the cab made a hard right into a building. And it was, and
[inaudible] was killed.”
3. The truck inspections
Alan Byrum, a California Highway Patrol motor carrier
specialist with the multi-disciplinary accident investigation team
(MAIT), inspected the truck and trailer in the course of two days
over a year after the collision. He also reviewed the collision
scene photographs from the sheriff’s department and researched
the truck’s steering gear. In addition, Byrum ran a vehicle
history report to “see if there’s been any total loss or any damage
reported.” Further, Byrum went to a truck dealership to
photograph a similar truck and to obtain information on the
manufacturer’s recalls.
Byrum focused his inspection “on the steering, the throttle
and the brake system.” He did not find any mechanical problem
with the truck that would have caused it to crash. Byrum found
“no deficiencies with the accelerator pedal” of the truck. In
addition, although the brake was missing a pin, this was “not
enough to place the truck out of service.” When Byrum inspected
the truck’s steering system, he noticed the bolts from the steering
9
box were broken, with the bolt heads missing.7 He removed the
four broken bolts from the steering box and laid them on the
trailer before installing new bolts to test the steering box. The
steering box worked when Byrum tested it.
Byrum sought to determine whether the bolts broke,
causing the crash, or whether the truck crashed, causing the
bolts to break. He explained as to the first theory, “Had these
bolts failed at the railroad track, it would have caused a severe
power steering leak and there would have been a fluid trail to the
collision scene and there was no fluid trail.” The prosecutor
showed Byrum a photograph of the accident scene, and Byrum
confirmed there was no fluid trail in the photograph, although
there was fluid on the sidewalk and all over the steering gear. As
to the second theory, Byrum identified two bolts in the debris
field shown in the photographs of the accident scene. Both bolts
were consistent with the kind of bolts that were used on Core’s
truck to close the steering box. When asked what force would
need to be applied to blow off the bolt heads, Byrum responded,
“[T]he right front wheel struck something very hard which put a
lot of force on the steering mechanism. So that force was
transmitted through the tie rod and through the drag link. As
the axle was pulled backwards, it thrusted this Pittman arm
rearward, which caused an upward thrust of the internal
mechanism in the box, which popped those four bolt heads.” The
type of force necessary to blow off the bolt heads would be
consistent with a collision, for example, running a truck into a
post or building.
7 The photographs of the steering gear taken on the day of
the crash showed it was intact; however, someone had partially
disassembled it by the time Byrum conducted his inspection.
10
The prosecutor asked Byrum a hypothetical question in
which someone was driving the truck and its steering box came
apart. Byrum explained in this situation there would be “a
complete disconnect, you are not going to feel anything.” But if
the driver feels the steering wheel jerk out of his or her hand
while driving, “the steering [is] intact and there is no disconnect.
That whatever is causing the front wheels to react, you are
feeling it in the steering wheel.”
On cross-examination, Byrum admitted he did not know
what happened to the broken bolts he removed from the steering
box. Byrum acknowledged that if he had the broken bolts, a
metallurgist could examine them and determine whether there
were preexisting fractures in the bolts before the collision.
Byrum had heard of broken bolts being sent to a metallurgist, but
he had never done so.
Over a year after the collision, California Highway Patrol
Officer Thomas Bomar, a MAIT investigator, conducted an
inspection of the truck’s electronic data stored in its computer
module. The computer module contains a record of a hard stop or
sudden deceleration of the truck. The computer module
generated a sudden vehicle deceleration report (deceleration
report), a graph from which was admitted into evidence. The
graph shows the truck’s speed during the 60 minutes before and
10 minutes after a “sudden deceleration event,” with the sudden
deceleration event depicted as zero. Bomar also reviewed the
reports and photographs provided by the sheriff’s department
and visited the accident scene. Bomar testified his “inspection
was limited to imaging or copying that data and analyzing that
data from the engine modules of truck.”
Bomar calculated that the truck went over the railroad
tracks, which were 600 to 700 feet from the accident scene, 20 to
11
21 minutes before a sudden deceleration event. At the time the
truck went over the tracks, it was travelling at approximately 14
to 15 miles per hour. The truck’s speed then increased to 24
miles per hour, and a minute before the sudden deceleration
event, the truck’s speed was travelling in the middle to high 30
miles per hour range. The truck was still running at 100 percent
throttle two seconds before the sudden deceleration event. The
data indicated Core did not depress the brakes until one second
after the sudden deceleration event. The truck’s warning lamp
came on approximately six seconds after the sudden deceleration
event. Bomar opined, “In this case the absence of the warning
lamp in that right most column would tell me the computer of the
truck basically sensed that everything was working normally or
as it should be.”
On cross-examination, Bomar clarified the time marked as
zero on the deceleration report is “the time the vehicle speed is
sensed by the computer as decelerating at least 9 miles per hour
over a one-second period, but not necessarily when the impact
occurs.” Further, the warning lamp would only warn that
something was wrong with the engine or power train. Another
vehicle problem such as a blown tire would not trigger the
warning lamp.
4. Drug recognition expert testimony
Anthony Marks, a professor of criminal justice and a former
drug recognition expert instructor, testified for the prosecution as
a drug recognition expert (D.R.E.).8 Marks explained, “D.R.E.
8 Marks indicated he usually testified for the defense, and
“[p]robably in the 95 percent range is when I’m consulted by the
defense first.”
12
reconstruction is not an official term but it is a term recognized
by the D.R.E. community, which is a very, very small community
of law enforcement officers. It is a term recognized by that
community of individuals that look at information that is
provided pursuant to somebody being under the influence, like in
the instance of a crash, and look at observations by peace officers,
by medical personnel, a combination of toxicology, an individual’s
behavior, whether it’s driving behavior or behaviors during
standardized field sobriety tests, and make[] a determination
whether or not a substance or a chemical played a role in an
individual’s degree of impairment or if they were impaired during
a crash.”
Marks testified methamphetamine causes the release of
excess dopamine in the brain, which creates a high by increasing
the body’s pulse, blood pressure, and temperature, and causes
“fast repetitive speech, sweating, [and a] jerky kind of behavior.”
To be in homeostasis, the body will produce a chemical to remove
the excess dopamine, like squeezing the chemical out with a
sponge. When the dopamine is “removed,” the other
neurotransmitters are still present in the brain, and at that
point, “instead of looking up, you can appear to be very down.” At
this point the person experiences the “downside” effect of
methamphetamine, which causes drowsiness as well as
“confusion, an inability to pay attention, perhaps disorientation,
[and] a lack of coordination.”
Methamphetamine can be prescribed to treat “mild
depression, attention deficit disorder, narcolepsy, [and] some
eating disorders.” On cross-examination, Marks testified he was
unable to determine whether the methamphetamine levels shown
in Core’s toxicology report fell within a therapeutic level for Core
because that level is different for each person. Further, Marks
13
opined the relevant question is whether a person is impaired, not
whether he or she is taking methamphetamine at a therapeutic
level, because a person “still might be impaired within a
therapeutic range.”
Marks opined methamphetamine-induced impairment
played a role in the crash. Marks relied on observations by the
deputies in their traffic collision reports indicating Core “was in a
fog” and “had trouble answering questions.” Marks added, “But
as a result of a collision of this degree, you might expect that
from somebody at first. But what I do remember in the report is
that the officers made these observations over a period of time,
which leads me to believe that fogginess and that haze was due to
something other than the effects of the crash.” Marks believed
the officers made the observations over a 15- to 20-minute period.
Marks admitted he did not review the video of Core’s interview
with the deputy. But Marks recalled the report stated Core
“mumbled answers and then seemed lethargic and unaware of his
surroundings.” Marks admitted none of the reports stated Core
was impaired or under the influence of a drug. But Marks
testified, “As a reconstructionist, it’s implied. . . . Inattentive,
confused, mumbled answers, and lethargic and unaware of his
surroundings. Those are—word for word imply impaired.”
5. Core’s 2009 commercial driver license application and
participation in a 2013 drug treatment program
The prosecution introduced evidence that in 2009 Core
applied for and was granted a commercial driver’s license. The
application contained an advisement that provides: “I am hereby
advised that being under the influence of alcohol or drugs, or
both, impairs the ability to safely operate a motor vehicle.
Therefore, it is extremely dangerous to human life to drive while
14
under the influence of alcohol or drugs, or both. If I drive while
under the influence of alcohol or drugs, or both, and as a result, a
person is killed, I can be charged with murder.” The court also
admitted evidence of Core’s participation in a drug treatment
program in 2013 and the materials from the program.
B. The Defense Case
William Focha, an accident reconstruction expert and
former traffic investigator, testified on behalf of Core. Focha
inspected the truck’s steering, brakes, and “what was left of the
suspension system.” Focha focused on the steering because the
report from the sheriff’s department indicated Core said “he felt
the steering wheel either get jerked out of his hand or pull in his
hand.” Focha noticed the steering box differed from the
photographs taken at the accident scene. In the photographs the
cap covering the input shaft had separated from the steering box,
and the bolts were broken. When he inspected the truck, “the cap
was back in place and it had brand new bolts holding it in place.”
Focha was unable to determine whether the bolts were
broken as a result of the accident because he did not have the
broken pieces to examine. If he had the broken bolts, he would
have sent them to a metallurgist or a mechanical engineer, who
could determine whether the bolts had a defect prior to their
failure. On cross-examination, Focha admitted in his
approximately 20 years as an accident reconstruction expert, he
had never sent bolts to be tested by a metallurgist.
Focha opined that if the steering box separates while a
driver is on a smooth, flat road, “he is not going to feel a lot other
than heaviness in the wheel as he starts to turn the steering
wheel,” and he would “have a total lack of control.” If only some
of the bolts break, the driver would still be able to steer the truck.
15
But if all four bolts broke, the driver would not be able to steer.
Moreover, if the bolts broke, the steering box fluid would leak
onto the ground. Defense counsel showed Focha a photograph of
the curb where the truck came to rest at the accident scene. The
photograph depicted a bolt on the ground, but Focha could not
determine whether it was a bolt from the steering box because
there was not sufficient definition in the photograph. Focha
observed there was no steering box fluid around the bolt, which
he would have expected to see if it was a bolt to the steering box.
On cross-examination, Focha acknowledged that hitting a pillar
or building at 20 to 30 miles per hour could cause the steering
box to separate.
Focha also reviewed the electronic data Bomar obtained
from the truck’s engine control module. Focha testified a truck
driver would typically use the clutch to start or stop the truck,
but not when shifting gears. When a truck “goes into a jack
knife” position,9 the driver “is going to get slammed all around in
the cab,” making it hard to control the clutch, brake, or throttle.
On cross-examination, Focha agreed the collision likely occurred
right around zero on the deceleration report graph, when the
speed precipitously dropped.
C. The Verdict and Sentencing
The jury found Core guilty on count 1 of second degree
murder. The trial court sentenced Core to 15 years to life on
count 1 (Pen. Code, § 187, subd. (a)); 364 days in county jail on
count 2 for misdemeanor possession of methamphetamine
9 According to Focha, a truck goes into a jack knife position if
the drive wheels lock up.
16
(Health & Saf. Code, § 11377);10 and the upper term of three
years on count 3 for possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1)). The court ordered the sentences on counts
2 and 3 to run concurrent with the sentence on count 1.
Core timely appealed.
DISCUSSION
A. Vehicular Manslaughter Is Not a Lesser Included Offense of
Murder, and Failure To Instruct on Vehicular
Manslaughter Did Not Constitute a Violation of Equal
Protection
In Sanchez, supra, 24 Cal.4th at page 992, the Supreme
Court held gross vehicular manslaughter while intoxicated is not
a lesser included offense of murder. The Supreme Court
explained, “Although it long has been held that manslaughter is a
lesser included offense of murder, this tradition has not explicitly
included offenses requiring proof of specific elements unique to
vehicular manslaughter. Unlike manslaughter generally,
vehicular manslaughter while intoxicated requires proof of
elements that are not necessary to a murder conviction. The use
of a vehicle while intoxicated is not merely a ‘circumstance,’ but
an element of proof when the charge is gross vehicular
manslaughter while intoxicated.” (Id. at p. 991; accord, People v.
Munoz (2019) 31 Cal.App.5th 143, 154 (Munoz) [“Our Supreme
Court has held that gross vehicular manslaughter while
10 Prior to trial, Core pleaded no contest to misdemeanor
possession of methamphetamine and possession of a firearm by a
felon. The jury therefore did not hear evidence as to Core’s
possession of a firearm.
17
intoxicated also is not a lesser included offense of murder under
the statutory elements test.”].) Like gross vehicular
manslaughter while intoxicated, vehicular manslaughter requires
proof of driving a vehicle, which is not an element of implied
malice murder. (See People v. Bettasso (2020) 49 Cal.App.5th
1050, 1059 [“Because vehicular manslaughter with or without
gross negligence requires proof of elements that are not necessary
to the offense of murder, vehicular manslaughter (as so defined)
is not a necessarily lesser included offense of murder.”].)
Core urges us to reexamine Sanchez in light of the
dissenting opinions in the case, but we are bound by the Supreme
Court’s pronouncement of the law. (K.R. v. Superior Court (2017)
3 Cal.5th 295, 308 [“‘it is established that a holding of the
Supreme Court binds all of the lower courts in the state,
including an intermediate appellate court’”]; People v. Johnson
(2012) 53 Cal.4th 519, 527-528 [decisions of Supreme Court are
binding on appellate courts].)
Core also contends notwithstanding Sanchez, the failure to
treat vehicular manslaughter as a lesser included offense of
murder violates equal protection by treating defendants who are
charged with implied malice murder based on a vehicular
homicide differently from similarly situated defendants who are
charged with murder and other types of manslaughter, for
example based on heat of passion or unreasonable self-defense.
Thus, Core argues, defendants charged with murder based on a
vehicular homicide are at a disadvantage because the jury is
given an all-or-nothing choice that other defendants convicted of
implied malice murder do not face. We find no constitutional
violation.
“The concept of equal treatment under the laws means that
persons similarly situated regarding the legitimate purpose of the
18
law should receive like treatment. [Citation.] “‘“The first
prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal
manner.” [Citation.] This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are
similarly situated for purposes of the law challenged.”’” (People v.
Morales (2016) 63 Cal.4th 399, 408; accord, Cooley v. Superior
Court (2002) 29 Cal.4th 228, 253.)
If the court finds a law treats similarly situated persons
differently, we consider whether the challenged law disparately
affects a suspect classification or “burdens fundamental rights.”
(People v. Chatman (2018) 4 Cal.5th 277, 288; accord, Munoz,
supra, 31 Cal.App.5th at p. 159.) A right is fundamental if it is
“‘“deeply rooted in this Nation’s history and tradition,” . . . and
“implicit in the concept of ordered liberty,” such that “neither
liberty nor justice would exist if [it was] sacrificed.”’” (Jimenez v.
County of Los Angeles (2005) 130 Cal.App.4th 133, 142, quoting
Washington v. Glucksberg (1997) 521 U.S. 702, 720-721; accord,
Munoz, at p. 159.) If a law does not burden a fundamental right,
“[w]e find a denial of equal protection only if there is no rational
relationship between a disparity in treatment and some
legitimate government purpose.” (Chatman, at pp. 288-289;
accord, Munoz, at p. 160.)
“[T]here is no federal constitutional right of a defendant to
compel the giving of lesser-related-offense instructions.
[Citations.] Further, except [in specified situations in capital
cases] . . . , there is no federal constitutional right to instruction
on lesser necessarily included offenses.” (People v. Rundle (2008)
43 Cal.4th 76, 148, disapproved on another ground by People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, Munoz, supra,
19
31 Cal.App.5th at p. 160; People v. Wolfe (2018) 20 Cal.App.5th
673, 688.) Moreover, “a trial court’s obligation to instruct a jury
as to lesser included offenses is based on state constitutional law,
not the federal Constitution.” (Wolfe, at p. 688; accord, Munoz, at
p. 160.) Although the California Supreme Court has highlighted
the importance of instructing on lesser included offenses to
“prevent[] the ‘strategy, ignorance, or mistakes’ of either party
from presenting the jury with an ‘unwarranted all-or-nothing
choice,’ encourag[ing] ‘a verdict . . . no harsher or more lenient
than the evidence merits’” (People v. Breverman (1998) 19 Cal.4th
142, 155), we agree with our colleagues in Division 1 of the
Second Appellate District that the right to an instruction on a
lesser included offense is not a fundamental right for purposes of
an equal protection challenge. (See Munoz, at p. 162; see also
Wolfe, at p. 688.) Accordingly, Core’s challenge is subject to
rational basis review.
We need not reach whether defendants convicted of implied
malice murder based on a vehicular homicide are similarly
situated to those whose convictions rest on nonvehicular
homicides because we conclude there is a rational basis for the
Legislature’s treatment of vehicular manslaughter differently
from nonvehicular manslaughter. We agree with the conclusion
of our colleagues in Division 1 of this district in Munoz, supra,
31 Cal.App.5th at page 162, in rejecting an equal protection
challenge to the trial court’s failure to instruct on vehicular
manslaughter as a lesser included offense of implied malice
murder: “[T]he vehicular manslaughter statutes are reasonably
related to the legitimate legislative purpose of providing a wider
and more nuanced range of penalties given the ubiquity of
automobiles and the resulting deaths caused by motorists. In
short, the vehicular manslaughter statutes, and the
20
corresponding exclusion of vehicular homicides from the
involuntary manslaughter statute, do not violate Munoz’s right to
equal protection of the laws.” (Accord, People v. Bettasso, supra,
49 Cal.App.5th at p. 1059, fn. 8 [“Bettasso provides no reason for
us to reject Wolfe’s conclusion that the differential treatment of
vehicular and nonvehicular manslaughter passes rational basis
review.”].)
B. The Trial Court Did Not Abuse Its Discretion in Admitting
Photographs of the Victim
1. Proceedings below
Outside the presence of the jury, defense counsel objected
to the admission of three photographs of Burris’s remains under
the rubble of the building, arguing the prejudice outweighed the
photographs’ probative value. The People argued the
photographs were relevant to show that Burris died and to
explain what was under the white sheet in the photographs. The
trial court overruled the objection and admitted the photographs.
The court reasoned, “I have very much weighed and considered
the appropriateness of admitting it. Ultimately I’m going to
admit it but I want to explain why. [¶] A trial is a search for the
truth. Sometime that truth is fairly benign and sometimes it’s
not graphic. Sometimes it is. [Evidence Code section] 352 is
written such that we are searching for the truth. [¶] That line
gets crossed when a prosecutor tries to inflame a jury by
overemphasizing a point unduly, which is not the case here. The
prosecutor is just trying to present the truth. Whether it’s
graphic or not, it is not of his doing. . . . And in this case the
truth is graphic, unfortunately.”
The court added, “But I do agree that [the prosecutor] is
walking a fine line. I think if I were the prosecutor, I would be
21
arguing to push for the video to be admitted. I think I would
want the jury to see a body essentially exploding into different
pieces when a massive vehicle hits the victim full force. . . . [¶]
And this is a close case, factually speaking. And I would fully
understand if [the prosecutor] in his desire to win this case would
opt for the video but he is not. He is showing restraint and I
think commendable restraint. [¶] For example, there are photos
where you literally have the license plate embedded into
mutilated flesh of the victim. . . . [¶] And the argument could be
made, look, here is the sheer weight of the force. That this semi
truck ran into this body with such force that even the license
plate got embedded into the body. But he is not doing that
either.”
The court explained further, “[A]nd I have heard evidence
of how the methamphetamine can actually be helpful to drivers,
it can for a short duration enhance the alertness, enhance the
energy level, enhance the ability to stay awake for a period of
time, and as I have listened to the evidence, in my mind I
thought this was going to be a very difficult case to prove beyond
a reasonable doubt. And I think in large part that’s because I
haven’t appreciated the danger of just how big this truck was. I
have seen pictures of it and I have seen pictures of what it did to
the building but I haven’t really had an appreciation of just why
we have these laws, why the government has even micromanaged
truck drivers to the point where we want them to keep a log of
how many hours they sleep . . . . [¶] So I think these photos,
while graphic, simply do the following: they show the truth of
what happened. . . . I don’t think it’s our place to sanitize life and
death. It is our place to make sure that the evidence is not
inflammatory.” Moreover, “the results that are shown go to the
implied malice.” As discussed, at trial, Deputy Saucedo
22
confirmed he took the three photographs of Burris’s remains at
the scene, but he did not show the photographs to the jury.
The prosecutor also sought to introduce a photograph of
Burris while he was alive. Defense counsel indicated that would
be fine “[a]s long as it’s noninflammatory.” Defense counsel
noted, “[W]e may be able to just come up with a stipulation as to
proof of life also to avoid a family member actually having to take
the stand and talk about the decedent.” During the trial, the
prosecutor offered a stipulation between the parties that
“People’s exhibit 27 is a photograph of Gary Burris.” Defense
counsel stipulated.
2. Governing law
“‘Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.”’” (People v.
Hardy (2018) 5 Cal.5th 56, 87; accord, People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 822.) “‘The court in its discretion
may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ (Evid. Code, § 352.)” (Hardy, at p. 87;
accord, People v. Bell (2019) 7 Cal.5th 70, 105.)
“‘[T]he prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. “[A]ll evidence which tends
to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is ‘prejudicial.’ The
‘prejudice’ referred to in Evidence Code section 352 applies to
23
evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on
the issues.”’” (People v. Jones (2017) 3 Cal.5th 583, 610; accord,
People v. Bell, supra, 7 Cal.5th at p. 105 [“‘“Evidence is not
prejudicial, as that term is used in [the Evidence Code]
section 352 context, merely because it undermines the opponent’s
position or shores up that of the proponent.”’”].) “‘[T]he trial
court is vested with wide discretion in determining relevance and
in weighing the prejudicial effect of proffered evidence against its
probative value. Its rulings will not be overturned on appeal
absent an abuse of that discretion.’” (People v. Hardy, supra,
5 Cal.5th at p. 87; accord, Bell, at p. 105.)
3. Core forfeited his challenge to the admission of
Burris’s photograph while alive, and he has failed to
show ineffective assistance of counsel
Core contends it was error to admit the photograph of
Burris when he was alive because it was not relevant to any
disputed issue in the case. But defense counsel indicated
admission of the photograph was fine “[a]s long as it’s
noninflammatory.” The prosecutor selected a photograph that
was not inflammatory, simply showing Burris standing with
another man. Further, defense counsel stipulated to admission of
the photograph of Burris. Core therefore forfeited his claim of
error. (Evid. Code, § 353, subd. (a); People v. Cage (2015)
62 Cal.4th 256, 282 [“Defendant forfeited his claims by failing to
object to any of the testimony on the grounds he now raises.”];
People v. Fuiava (2012) 53 Cal.4th 622, 721 [“‘“In accordance with
[section 353 of the Evidence Code], we have consistently held that
the ‘defendant's failure to make a timely and specific objection’ on
24
the ground asserted on appeal makes that ground not
cognizable.”’”].)
Core alternatively argues that defense counsel provided
ineffective assistance of counsel. “‘“To establish ineffective
assistance of counsel, a defendant must show that (1) counsel’s
representation fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.”’” (People v. Rices (2017)
4 Cal.5th 49, 80; accord, People v. Bell, supra, 7 Cal.5th at p. 125;
see Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
“On direct appeal, if the record ‘“sheds no light on why
counsel acted or failed to act in the manner challenged,”’ we must
reject the claim ‘“unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (People v. Caro (2019) 7 Cal.5th 463,
488; accord, People v. Mickel (2016) 2 Cal.5th 181, 198 [“[A]
reviewing court will reverse a conviction based on ineffective
assistance of counsel on direct appeal only if there is affirmative
evidence that counsel had ‘“‘no rational tactical purpose’”’ for an
action or omission.”]; see People v. Lopez (2008) 42 Cal.4th 960,
972 [“[E]xcept in those rare instances where there is no
conceivable tactical purpose for counsel’s actions, claims of
ineffective assistance of counsel should be raised on habeas
corpus, not on direct appeal.”].)
Here, the record shows defense counsel stipulated to the
admission of the photograph to “avoid a family member actually
having to take the stand and talk about the decedent.” Thus,
defense counsel made a tactical decision to avoid having a family
member testify about Burris, potentially making Burris more
25
sympathetic to the jury. Core has therefore not shown ineffective
assistance of counsel.
4. The trial court did not abuse its discretion in
admitting photographs of Burris’s remains
“So long as the probative value of graphic or disturbing
material is not substantially outweighed by its prejudicial effects,
a prosecutor is entitled to use such evidence to ‘present a
persuasive and forceful case.’” (People v. Merriman (2014)
60 Cal.4th 1, 80; accord, People v. Steskal (2021) 11 Cal.5th 332,
357 [“Graphic evidence in a murder case is always disturbing
[citation] but it is not inadmissible simply because it is
unpleasant to view.”]; People v. Fayed (2020) 9 Cal.5th 147, 196
[“‘“As a rule, the prosecution in a criminal case involving charges
of murder or other violent crimes is entitled to present evidence
of the circumstances attending them even if it is grim” [citation],
and even if it “duplicate[s] testimony, depict[s] uncontested facts,
or trigger[s] an offer to stipulate.”’”]; People v. Booker (2011)
51 Cal.4th 141, 171 [the prosecution “is not required to sanitize
its evidence”].) “‘The admission into evidence of photographs lies
within the trial court’s discretion and will not be disturbed absent
an abuse of that discretion.’” (People v. Avila (2014) 59 Cal.4th
496, 518; accord, People v. Chism (2014) 58 Cal.4th 1266, 1304.)
Core contends the trial court abused its discretion in
admitting the photographs of Burris’s remains, arguing they
were highly prejudicial and were not probative of any disputed
issue. “A defendant, however, ‘cannot prevent the admission of
relevant evidence by claiming not to dispute a fact the
prosecution is required to prove beyond a reasonable doubt. The
jury was entitled to learn that the physical evidence . . . supports
the prosecution’s theory of the case.’” (People v. Steskal, supra,
26
11 Cal.5th at p. 356; accord, People v. Roundtree (2013)
56 Cal.4th 823, 852.)
We agree the photographs are gruesome, showing body
parts under the rubble from the building. But as the trial court
observed, the photographs were relevant to prove that Burris
died and the cause of his death. In addition, the photographs
were relevant to prove implied malice by showing the enormous
impact from a large tractor-trailer truck crashing into a
pedestrian, supporting the People’s theory that Core drove the
truck while impaired in a manner in which the natural and
probable consequences were dangerous to human life. (See
People v. Bryant (2013) 56 Cal.4th 959, 965 [“‘We have
interpreted implied malice as having “both a physical and a
mental component. The physical component is satisfied by the
performance of ‘an act, the natural consequences of which are
dangerous to life.’ [Citation.] The mental component is the
requirement that the defendant ‘knows that his conduct
endangers the life of another and . . . acts with a conscious
disregard for life.’”’”].)11
C. The Trial Court Did Not Abuse Its Discretion in Admitting
the Drug Recognition Expert’s Testimony
“‘“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
11 The People also argue admission of the photographs was
not prejudicial because the exhibits were not sent into the jury
room. However, the trial court instructed the jury, “These
exhibits will be sent into the jury room with you when you begin
to deliberate.” It is not clear from the record whether the
exhibits were later sent into the jury room.
27
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).) An expert may
express an opinion on “a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the
trier of fact.” (Evid. Code, § 801, subd. (a).)’” (People v. Duong
(2020) 10 Cal.5th 36, 60; accord, People v. Sanchez (2016)
63 Cal.4th 665, 675.) “The witness’s expertise ‘may be shown by
any otherwise admissible evidence, including his own testimony.’”
(People v. Morales (2020) 10 Cal.5th 76, 97 (Morales), quoting
Evid. Code, § 720, subd. (b); accord, People v. Nelson (2016)
1 Cal.5th 513, 536.) “‘The trial court has broad discretion in
deciding whether to admit or exclude expert testimony [citation],
and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of
discretion.’” (Duong, at p. 60; accord, Morales, at p. 97 [“‘“‘“The
trial court’s determination of whether a witness qualifies as an
expert is a matter of discretion and will not be disturbed absent a
showing of manifest abuse.”’”’”].)
Core contends the trial court abused its discretion in
admitting Marks’s expert testimony because no foundation was
laid for him to testify about drug recognition “reconstruction”
based on the observations of other police officers and the facts set
forth in the toxicology and other reports.12 The trial court did
not abuse its discretion.
12 Core concedes defense counsel did not object to Marks’s
expert testimony. But Core argues his claim of error is not
forfeited because his trial attorney provided ineffective assistance
of counsel by failing to object. We do not reach whether defense
counsel provided ineffective assistance of counsel because the
trial court did not abuse its discretion in admitting Marks’s
expert testimony.
28
Marks was qualified to testify as a drug recognition expert.
He worked as a pharmacy technician for 30 years for the Los
Angeles County Probation Department before becoming a college
professor of criminal justice. Marks also was a non-sworn reserve
officer with the Los Angeles Police Department. In addition, he
was a certified drug and alcohol counselor. Marks received 52
hours of intensive training from the Los Angeles Police
Department as a drug recognition expert. To obtain his
certification, Marks passed a National Highway Traffic Safety
Administration Knowledge Exam and a minimum of 12 field
certification exams. In addition, Marks was a former drug
recognition instructor, which required an additional 40 hours of
training.
Although Marks did not describe any training he received
specific to drug recognition reconstruction, Marks explained
reconstruction is “recognized by the D.R.E. community” as a valid
approach to determine “whether a substance or a chemical played
a role in an individual’s degree of impairment or if they were
impaired during a crash.” Core fails to provide any support for
his contention a drug recognition expert must take specific
additional training (or such training exists) for the expert to
apply his or her experience to a reconstruction scenario.
Core also asserts Marks did not have sufficient information
to form a reconstruction analysis because there was no evidence
of poor driving or speeding prior to the accident, no information
about Core’s pulse rate and pupil size, and no field sobriety test
results. But there is no evidence Marks needed this information
to form an opinion about Core’s impairment. Marks testified to
the contrary: “[M]aking a determination of impairment involves
a totality of circumstances. It does not hang its hat on any one
specific detail such as pulse rate.”
29
Core further argues Marks relied on the deputies’ reports
to determine whether Core was impaired, but none of the
deputies believed Core was impaired or going through
withdrawal, including Deputy Quemuel, a drug recognition
expert, and Deputy Saucedo, who was previously a drug
recognition expert. Core also asserts Marks’s testimony is not
reliable because Marks believed the deputies observed Core over
a period of time, but the reports did not contain any time stamps.
Core’s challenges to the reliability of Marks’s testimony based on
the deputies’ reports goes to the weight of the evidence, not its
admissibility. (Morales, supra, 10 Cal.5th at p. 97 [“‘“‘“Where a
witness has disclosed sufficient knowledge of the subject to
entitle his opinion to go to the jury, the question of the degree of
his knowledge goes more to the weight of the evidence than to its
admissibility.”’”’”]; People v. Eubanks (2011) 53 Cal.4th 110, 143
[“questions regarding the validity or the credibility of an expert’s
knowledge go to the weight of such testimony, not its
admissibility”]; see People v. Veamatahau (2020) 9 Cal.5th 16, 35,
fn. 6 [“it is the jury’s role to decide the weight to accord to the
expert testimony and ‘courts must . . . be cautious in excluding
expert testimony’ so as not to usurp that role”].)
Core also criticizes Marks for relying on the toxicology
report because Marks acknowledged the amount of
methamphetamine in Core’s blood could fall within the
therapeutic range for methamphetamine. But Marks testified he
could not determine whether the amount of methamphetamine in
Core’s blood fell “within or outside of a therapeutic range for
[Core] specifically.” And he explained an individual “still might
be impaired within a therapeutic range.” Again, Core’s
challenges go to the weight of the evidence rather than its
30
admissibility. (Morales, supra, 10 Cal.5th at p. 97; People v.
Eubanks, supra, 53 Cal.4th at p. 143.)
D. Core Forfeited His Challenge to Admission of the Drug
Rehabilitation Course Materials and Has Failed To Show
Ineffective Assistance of Counsel
1. Proceedings below
Outside the presence of the jury, defense counsel objected
to the admission of course materials from a drug rehabilitation
program attended by Core in 2013. Defense counsel stated, “I
would object to have his Prop. 36 classes coming in. I think it’s
more prejudicial because the jurors are going to see that if
someone is taking Prop. 36 classes, they can draw the conclusion
that this person has a drug problem or drug history, possibly a
drug addict, even though the classes go back to, I think, four or
five plus years ago. [¶] So I would ask the court to keep the
Prop. 36 classes or any reference to them out of the eyes and ears
of the jurors.” The trial court responded, “I am going to allow it.
Again, it goes to his knowledge, which goes to implied malice.
However, I’m going to keep out the fact that—in other words, we
can make it somewhat generic. That in the past he was required
to take classes. In the course of those classes this is what he
learned.”
Defense counsel then argued, “[T]he People still need to
establish a foundation that my client was actually there, he was
actually explained these things and not just some documents that
are submitted from the class that say, hey, this is our curriculum
and Mr. Core was ordered to take these classes. They still need
to lay the foundation that my client was actually there and
taught these things.” The trial court replied, “I think that goes to
weight, not admissibility.” The court added, “I think . . . when a
31
search warrant is provided for the Prop. 36 class and it shows the
defendant was there . . . I think that is all that is required.”
Before closing arguments, the parties stipulated: “People’s
Exhibit 28 are records for defendant Richard Core subpoenaed by
the People from Ventura County Behavioral Health, a drug and
alcohol rehabilitation program. The exhibit includes both the
program’s internal records and copies of materials used during
the program.” Exhibit 28 contains an admission checklist; a
questionnaire about Core’s prior and current drug use, including
methamphetamine; an attendance record reflecting Core’s
attendance at an intake session, three group sessions, and a
discharge session; three progress notes for Core; a discharge
summary; and a treatment plan after discharge requiring Core’s
biweekly attendance at a self-help group. The progress notes
show that Core was enrolled in the “Early Recovery” program
entitled “Living in Balance.” According to the exhibit, the “Early
Recovery group is a 12-15 week treatment course.” The discharge
summary reflects that Core successfully completed the program
after two months. The exhibit contains the course materials from
three sessions: alcohol and tobacco (session 5); stress and
emotional well-being (session 8); and the twelve steps (session
14). Each session contains educational information and exercises
to be completed by the participant. The exhibit does not contain
course materials for the other sessions.
The People move to augment the record on appeal with “a
complete version of People’s Exhibit 28,” which they contend was
the exhibit admitted at trial, pursuant to California Rules of
Court, rules 8.155(a) and 8.340(c). Significantly, the proffered
version of exhibit 28 contains a section on the effects of drugs on
the body, whereas exhibit 28 includes only a session on alcohol
and tobacco. But the proffered exhibit is by no means “complete.”
32
Unlike exhibit 28, the proffered exhibit does not include the
program’s internal records showing Core’s attendance and
progress in the program.
The People argue that the proffered exhibit is the one
admitted at trial, noting that the prosecutor in his closing
argument referred to the discussion in the course materials about
methamphetamine and the downside effects of the drug. It does
appear the prosecutor at trial believed the exhibit admitted into
evidence and provided to the jury contained session materials on
drug use. But that does not mean the prosecutor provided a
complete version of the course materials to the court or that the
admitted version of the exhibit provided to the jury contained the
additional session materials the People now seek to include in the
record. To the contrary, it is exhibit 28 (with no relevant
materials on drug use) that contains an official green Los Angeles
Superior Court exhibit label signed by the clerk indicating it was
“admitted in evidence.” Because the proffered exhibit was not
admitted into evidence or shown to the jury, we deny the People’s
motion to augment the record.
2. Core forfeited his claim of error
Core contends the trial court abused its discretion in
admitting the drug rehabilitation course materials because the
admitted document does not contain any relevant information on
the risks from using methamphetamine and driving. As
discussed, the program materials in exhibit 28, in contrast to the
proffered exhibit we decline to consider, do not address
methamphetamine or its effects, including drowsiness. On this
basis, Core argues the course materials had no probative value,
and they were prejudicial because they did nothing more than
inform the jury that Core previously had a drug issue. Core also
33
asserts the prosecutor failed to lay a proper foundation for
admission of the document because there was no evidence the
materials were used during the program Core attended.
Although defense counsel initially objected to admission of
the course materials, he later stipulated to admission of exhibit
28. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 [“‘[W]hen a
party enters into a voluntary stipulation, he generally is
precluded from taking an appeal claiming defects in the
stipulation.’”]; People v. Gurule (2002) 28 Cal.4th 557, 623
[same].) Moreover, defense counsel never raised an objection that
exhibit 28 did not include any materials on the effects of drug
use. Thus, Core has forfeited his claims of error.
3. Core has failed to establish ineffective assistance of
counsel
In the alternative, Core contends his trial attorney’s
failure to object to admission of the course materials constituted
ineffective assistance of counsel. But defense counsel likely made
a tactical decision to stipulate to admission of the drug
rehabilitation course materials to avoid having a witness from
the drug rehabilitation program testify about Core’s attendance
at the program. Or defense counsel may have been aware that
the prosecutor failed to include the course materials on the effects
of drug use in the exhibit and decided not to object to admission
of the exhibit so as not to alert the prosecutor to the omission.
Thus, Core has not met his burden to show defense counsel had
“‘“‘no rational tactical purpose’”’ for [his] action or omission.”
(People v. Mickel, supra, 2 Cal.5th at p. 198; accord, People v.
Caro, supra, 7 Cal.5th at p. 514.)
34
E. Core Forfeited His Claim of Prosecutorial Misconduct and
Has Failed To Show Ineffective Assistance of Counsel
1. The prosecutor’s closing argument
During his closing argument, the prosecutor argued that
the day before the crash Core had “been trying to sleep on the
way but he’s clearly not getting enough sleep because he [got] his
truck stuck on something exiting the parking lot of that strip
mall in Valencia.” Core had not slept enough “so Officer Powers
took him out of service for ten hours.” The prosecutor added,
“And I don’t know how long it takes to get the truck
unstuck. . . . But I will tell you what he doesn’t do. Is sleep
enough.”
The prosecutor also asserted Core smoked
methamphetamine to stay awake while he was driving, noting
Detective Saucedo found two separate eyeglass cases “full of
meth” and “it was in his blood the next morning after this crash.”
The prosecutor added, “[T]hat blood draw comes back positive for
meth. It is a lot of meth, actually. It is like 250 nanograms per
milliliter of meth in his blood.” The “downside effects” of the
methamphetamine caused Core to “nod[] off,” resulting in Burris
being “left in pieces on the sidewalk.”
The prosecutor argued Core’s behavior did not match “with
what someone would do if the steering box failed,” and Core did
not “hit the brakes until six seconds after the crash.” The
prosecutor added, “In fact, the truck is stopped at second 3 and he
still has got his foot all the way down on the gas. The throttle is
all the way down on the floor while the truck is sitting there not
moving. And for three seconds he sits there not moving with his
foot on the gas. And, oh, puts it on the brake. That is someone
that fell asleep.”
35
The prosecutor explained “an abiding conviction” as
something that is “reasonable to believe.” He argued, “And if you
say, yeah, I am convinced it happened this way, I’m convinced he
smoked meth and it wore off and he nodded off and killed this
guy, that’s it. You are done. That is all it is. An abiding
conviction.”
The prosecutor then argued there was implied malice
because Core knew “driving a big rig when he [was] exhausted”
was dangerous to human life but he “disregarded it.” The
prosecutor added, “[Core] actually was told that it’s dangerous to
drive exhausted. The State makes him keep that sleep log. They
make him say what he is doing every 15 minutes. The State tells
him you cannot drive tired. . . . The [California Highway Patrol]
officer said . . . if I even can’t tell the last time he slept, you are
out for ten hours. That’s how important it is. If I am not sure,
you are out for ten hours. . . . The day before this happened they
told him, it’s so important. I can’t be sure when you slept. You
are out. Go get sleep. . . . [¶] Does he know that he is too tired
on that day? What was the evidence? The biggest one to me—
second biggest, he forged his sleep log. He faked the log. . . .
That is 100 percent proof that he knew [he had not] had enough
sleep because he is looking at the log and realizing this isn’t right
and I’m just going to fake it. [¶] He got the truck stuck the day
before. Like I said, that is a big flashing warning sign to him.
Don’t drive. You are not in a good condition. Don’t drive. Officer
Powers told him to go to sleep. [¶] He is so tired he drives the
wrong route. [¶] And then he told them he was tired. Deputy
Efflandt, the blond deputy, said, yeah, I asked him what’s up and
he told me he hadn’t slept enough. He told me that and so that’s
why I marked that on my report. He said he was too tired.”
36
The prosecutor added, “And then the biggest one probably
is that he chose to smoke meth. Why? To stay awake because he
knows he’s too tired. The only reason to smoke that before he
gets behind the wheel is he is saying to himself, I’m too tired to
drive. I’m going to smoke some meth to stay awake. [¶] But
what about when it wears off? And he knows that, too. That it’s
dangerous. That if this doesn’t work, that it’s not safe to drive
this way. He knows it because of two things. . . . And we didn’t
even put it up on the overhead so you haven’t seen any of this yet.
But the first thing we put in was his application to be a truck
driver, and on the application it tells him it’s dangerous to
human life to use drugs to drive. And that if you do and someone
is killed, you can be charged with murder. [¶] But, look, that’s
on his driver’s license application. There is a bunch of stuff on
there. He’s going to say, well, maybe he didn’t read it. Maybe he
didn’t.”
The prosecutor then argued, “But in 2013 the defendant
went through drug rehab for meth. We put the whole packet of
documents in. It is like 100 pages. I won’t put them all up here
but I want to talk about some of the things that are on it. So he
does this program in 2013. He spends 64 days, and he
successfully completes the program and gets discharged. . . . And
what do they tell him in that drug program? The same thing Mr.
Marks told you about how meth works and what happens with
the downside effect. They tell him about neurotransmitters in
your brain and how they work. That they can be too high or too
low or imbalance. That is homeostasis. They told him that when
you use drugs, a person’s neurotransmitters may be temporarily
used up. It is that dry sponge used up. No more dopamine. And
that the withdrawal symptoms when the meth wears off begins
within hours of your last use and includes a bunch of things.
37
Irritable, anxious, tired and that you can sleep excessively. That
you can fall asleep. He knows that. He personally was told that
in 2013. And then in 2017 smokes meth to try to stay awake and
this is the result.”
The prosecutor added, “And any one of those things is
enough. . . . Like, you could look and say he forged his sleep log.
Yeah, that tells me for sure he didn’t sleep enough. I’m done.
These are all completely separate things. Pieces of evidence.
Any one of them works. There is six of them there. So that’s
overwhelming evidence that he knew it’s dangerous. He knew he
is too tired. He did it anyway. That’s it. The case is over. He is
guilty.”
Finally, the prosecutor argued Core showed “a disregard for
human life.” The prosecutor stated, “[Core] did it in getting
behind the wheel when he knew he was too tired and smoking
meth to try and stay awake. And it really comes through when
they are talking to him after because all he wants to talk about is
himself. I don’t want to do this. . . . I’m not going to do your
tests. I don’t want a blood test. Me, me, me, me, me. And then
he says, ‘My life is over.’ Your life is over. Gary Burris’s life is
over. His life goes on. His life is not over. But what does he say
after he kills somebody? ‘My life is over.’ Me. He cared more
about his dog than he cared about killing Gary Burris. And if
that’s not disregard for human life, I don’t know what is.”
2. The prosecutor committed misconduct, but Core
forfeited his claim by failing to object
“‘“A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
38
trier of fact.”’” (People v. Beck and Cruz (2019) 8 Cal.5th 548,
657; accord, People v. Hoyt (2020) 8 Cal.5th 892, 943.) “‘“A
defendant’s conviction will not be reversed for prosecutorial
misconduct, however, unless it is reasonably probable that a
result more favorable to the defendant would have been reached
without the misconduct.”’” (People v. Young (2019) 7 Cal.5th 905,
932-933; accord, People v. Tully (2012) 54 Cal.4th 952, 1010.)
Core asserts multiple grounds of prosecutorial misconduct.
He contends the prosecutor misstated the law for implied malice
because he told the jury that if they were “convinced [Core]
smoked meth and it wore off and he nodded off and killed this
guy, that’s it.” But this statement was made in the context of the
meaning of an “abiding conviction,” not implied malice. The
prosecutor explained implied malice was Core “doing something
[he] knows is dangerous and accidentally killing someone while
doing it.” The prosecutor later added implied malice is “doing
something he knows is dangerous to human life but he does it
anyway.” The prosecutor did not misstate the law on implied
malice.
Core’s argument the prosecutor falsely stated Core was
sleep deprived likewise lacks merit. The prosecutor based his
argument on a reasonable inference drawn from Core’s statement
to Officer Powers the day before the crash that he had gone to the
parking lot to sleep; Officer Powers’s statement Core appeared a
“little bit tired”; and Core’s statement to Deputy Efflandt after
the crash that “he was just tired from waking up early.”
Likewise, the prosecutor had latitude to argue Core’s concern for
himself and his dog over that of the victim following the crash
showed his disregard for human life in driving while under the
influence before the crash. Similarly, the prosecutor did not
commit misconduct by arguing Core’s toxicology report showed “a
39
lot of meth” in his blood. (See People v. Seumanu, supra,
61 Cal.4th at p. 1330 [“A criminal prosecutor has much latitude
when making a closing argument. Her argument may be
strongly worded and vigorous so long as it fairly comments on the
evidence admitted at trial or asks the jury to draw reasonable
inferences and deductions from that evidence.”]; People v.
Edwards (2013) 57 Cal.4th 658, 736 [same]; People v. Panah
(2005) 35 Cal.4th 395, 463 [a prosecutor “‘has the right to fully
state his views as to what the evidence shows and to urge
whatever conclusions he deems proper’”].)
But the prosecutor committed misconduct by arguing facts
not in evidence. “It is well settled that it is misconduct for a
prosecutor to base argument on facts not in evidence.” (People v.
Mendoza (2016) 62 Cal.4th 856, 906; accord, People v. Rodriquez
(2020) 9 Cal.5th 474, 480 [“‘“Statements of supposed facts not in
evidence . . . are a highly prejudicial form of misconduct, and a
frequent basis for reversal.”’”].) Officer Powers testified he took
Core out of service because of the discrepancies in Core’s log book,
not that the book was forged or fake or he believed Core needed
more sleep. Further, Officer Powers noted Core was fatigued
from trying to move his truck from where it was stuck (not a lack
of sleep), and he did not direct Core to get more sleep. Moreover,
the prosecutor claimed Core did not depress the brakes until six
seconds after the crash, but the electronic data from the truck
showed Core applied the brakes one second after the sudden
deceleration event, which was not necessarily after the crash.
More troubling, the prosecutor argued Core went to a drug
rehabilitation program in 2013 and was “told about how meth
works and what happens with the downside effect.” But as
discussed, the drug rehabilitation course materials in exhibit 28
40
only focus on the effects of alcohol and tobacco, not
methamphetamine.
However, Core forfeited his claim of prosecutorial
misconduct by failing to object. “‘“As a general rule a defendant
may not complain on appeal of prosecutorial misconduct unless in
a timely fashion—and on the same ground—the defendant made
an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.”’” (People v. Beck and
Cruz, supra, 8 Cal.5th at p. 657; accord, People v. Hoyt, supra,
8 Cal.5th at p. 942 [defendant “failed to object to nearly all such
instances [of prosecutorial misconduct during his closing
argument] and has therefore forfeited these claims on appeal”].)
“‘The lack of a timely objection and request for admonition will be
excused only if either would have been futile or if an admonition
would not have cured the harm.’” (Hoyt, at pp. 942-943; accord,
People v. Powell (2018) 6 Cal.5th 136, 171.) Had Core’s attorney
objected, the trial court could have reminded the jury, as it had
instructed, that the attorneys’ closing arguments were not
evidence, and they should only consider the witness testimony
and exhibits as evidence. In addition, as to the drug
rehabilitation materials, the court could have specifically
instructed the jury that the materials did not include any
discussion of the effects of drugs.
3. Core has not shown ineffective assistance of counsel
Core argues his attorney was ineffective for failing to object
to the prosecutor’s argument. This argument fails because Core
has not shown his attorney’s failure to object was prejudicial.
(See Strickland v. Washington, supra, 466 U.S. at p. 697 [“[A]
court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the
41
defendant as a result of the alleged deficiencies.”]; People v. King
(2010) 183 Cal.App.4th 1281, 1298 [“If [the defendant] cannot
show prejudice, we may reject his claim of ineffective assistance,
and need not address the adequacy of trial counsel’s
performance.”].) The defendant “bears the burden of showing
prejudice, that is, a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” (People v. Centeno (2014) 60 Cal.4th 659, 676,
quoting Strickland, supra, 466 U.S. at p. 694; accord, People v.
Loza (2012) 207 Cal.App.4th 332, 350 [“‘In demonstrating
prejudice, the appellant “must carry his burden of proving
prejudice as a ‘demonstrable reality,’ not simply speculation as to
the effect of the errors or omissions of counsel.”’”].)
Core has failed to show it is reasonably probable the jury
would have reached a result more favorable to him absent the
prosecutorial misconduct. Before closing arguments, the trial
court instructed the jury, “Evidence is the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything else
I told you to consider as evidence. [¶] Nothing that the attorneys
say is evidence. In their opening statements and closing
arguments, the attorneys discuss the case but their remarks are
not evidence. Their questions are not evidence. Only the
witnesses’ answers are evidence.” We presume the jury
understood and followed the trial court’s instructions. (People v.
Flores (2020) 9 Cal.5th 371, 405; People v. Frederickson (2020)
8 Cal.5th 963, 1026.)
Further, the prosecutor did not rely only on the drug
rehabilitation course materials as evidence of implied malice.
The prosecutor argued Core’s statements to the deputies show
Core was tired, and he used methamphetamine to continue
driving as shown by his positive test for methamphetamine after
42
the crash. In addition, Core was aware of the dangers of using
methamphetamine and driving because his 2009 driver’s license
application advised him that being under the influence of drugs
“impairs the ability to safely operate a motor vehicle,” and if he
drove while under the influence of drugs and as a result killed a
person, he could be charged with murder.
Moreover, the records from the drug rehabilitation program
show Core first used methamphetamine at the age of 22 and
attended the program because he had an “amphetamine
dependence” problem. As someone who previously used
methamphetamine, Core had personal experience with the
downside effects of methamphetamine. As Marks testified, the
downside effect of methamphetamine causes drowsiness,
confusion, inability to pay attention, and a lack of coordination.
Thus, Core was personally aware of the risks of using
methamphetamine and driving.
The prosecutor’s other misstatements were less significant.
The prosecutor attributed to Officer Powers a belief that Core
was tired, but Core did tell Deputy Efflandt he was “tired from
waking up early.” And both officers encountered Core after he
had driven off route and, although he was an experienced truck
driver, had gotten his truck stuck on the driveway to a parking
lot, blocking a road lane. Although there was no evidence the log
book was forged, there was evidence it had discrepancies that led
Officer Powers to take Core out of service for 10 hours. As to
when Core depressed the brakes, whether he did so one second or
six seconds after the sudden deceleration event was not
significant. The principal issue at trial was whether Core acted
with implied malice by driving under the influence of
methamphetamine. On this record, it is not reasonably probable
43
that a result more favorable to Core would have been reached
absent the prosecutorial misconduct.
F. Substantial Evidence Supports Core’s Conviction of Murder
1. Standard of review
“When a defendant challenges the sufficiency of the
evidence for a jury finding, we review the entire record in the
light most favorable to the judgment of the trial court. We
evaluate whether substantial evidence, defined as reasonable and
credible evidence of solid value, has been disclosed, permitting
the trier of fact to find guilt beyond a reasonable doubt.” (People
v. Vargas (2020) 9 Cal.5th 793, 820; accord, People v. Penunuri
(2018) 5 Cal.5th 126, 142 [“‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational
trier of fact could have found the essential elements of the crime
or special circumstances beyond a reasonable doubt.’”].)
“‘“Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence.”’” (Penunuri, at p. 142; accord, People v. Mendez (2019)
7 Cal.5th 680, 703.)
“‘“The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence.”’” (People
v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera
(2019) 7 Cal.5th 306, 324 (Rivera).) “‘We presume in support of
the judgment the existence of every fact the trier of fact
reasonably could infer from the evidence. [Citation.] If the
circumstances reasonably justify the trier of fact’s findings,
44
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding.’” (People v. Westerfield (2019) 6 Cal.5th 632,
713; accord, People v. Penunuri, supra, 5 Cal.5th at p. 142 [“‘A
reversal for insufficient evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’” the jury’s verdict.’”].)
2. Substantial evidence supports the jury’s finding of
implied malice
“Murder is the unlawful killing of a human being . . . with
malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice may
be expressed or implied. (Id., § 188.) “‘Malice is implied when
the killing is proximately caused by “‘an act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’”’” (People v. Smith (2018) 4 Cal.5th 1134,
1165; accord, People v. Gonzalez (2018) 5 Cal.5th 186, 197.) “[A]
finding of implied malice depends upon a determination that the
defendant actually appreciated the risk involved, i.e., a subjective
standard.” (People v. Watson (1981) 30 Cal.3d 290, 296-297.)
Core contends there was not substantial evidence he was
subjectively aware his actions were dangerous to human life and
that he deliberately acted with conscious disregard for human
life. This contention lacks merit. Core is correct the drug
rehabilitation course materials in exhibit 28 do not discuss the
“downside effects” of methamphetamine or the dangers of using
methamphetamine and driving. But as discussed, the program
records show Core first used methamphetamine at the age of 22,
and he attended the drug rehabilitation program in 2013 because
45
he had an amphetamine dependence problem. Having previously
used methamphetamine, Core personally experienced
methamphetamine’s downside effects, as described by Marks, and
he was advised in his 2009 commercial driver’s license
application that driving while under the influence of drugs was
dangerous to human life, and if he caused someone’s death, he
could be charged with murder. Substantial evidence supports the
jury’s finding of implied malice.13
G. The Trial Court Complied with Its Obligations Under
Pitchess
1. Core’s Pitchess motion
On September 20, 2019 Core filed a Pitchess motion
pursuant to Evidence Code section 1043, seeking discovery of
Officer Powers’s personnel records concerning “[a]ll complaints
. . . relating to violation of constitutional rights, fabrication of
charges, fabrication of evidence, false arrest, perjury, dishonesty,
writing of false police reports, and any other evidence of
misconduct amounting to moral turpitude.” On October 4, 2019
the trial court granted the motion, ordering disclosure of any
information concerning Officer Powers’s dishonesty. The court
conducted an in camera hearing and found no disclosure was
required.
13 Core contends he suffered cumulative prejudice from
multiple errors. Because we reject Core’s claims of error (or find
no prejudice), there was no cumulative prejudice. (People v.
Powell, supra 6 Cal.5th 136, 194 [no cumulative prejudice where
“[a]ny errors, actual or arguable, were minor”]; People v.
Edwards, supra, 57 Cal.4th 658, 746 [no cumulative prejudice
because there was no error, or if assuming error, there was no
prejudice].)
46
2. The trial court did not abuse its discretion
“‘When a defendant shows good cause for the discovery of
information in an officer’s personnel records, the trial court must
examine the records in camera to determine if any information
should be disclosed.’” (Rivera, supra, 7 Cal.5th at p. 338; accord,
People v. Anderson (2018) 5 Cal.5th 372, 391.) “‘The court may
not disclose complaints over five years old, conclusions drawn
during an investigation, or facts so remote or irrelevant that their
disclosure would be of little benefit.’” (Rivera, at p. 338; accord,
People v. Winbush (2017) 2 Cal.5th 402, 424; see Evid. Code,
§ 1045, subd. (b).) “‘Pitchess rulings are reviewed for an abuse of
discretion.’” (Rivera, at p. 338; accord Anderson, at p. 391.)
Core requests we review the sealed portion of the record,
which includes the transcript of the in camera hearing. The
People do not object to our review. Core’s request for an
independent review of the sealed record is proper. (People v.
Anderson, supra, 5 Cal.5th at p. 391 [“Defendant properly asks us
to review the sealed record of the in camera hearing to determine
whether the court erroneously failed to provide discovery that he
should have received.”]; Rivera, supra, 7 Cal.5th 306, 338-339
[court reviewed sealed transcript of both in camera hearings and
sealed exhibits].)
We have reviewed the sealed record. The trial court did not
abuse its discretion in concluding there was no discoverable
information to disclose to Core. (See People v. Anderson, supra,
5 Cal.5th at p. 391; People v. Winbush, supra, 2 Cal.5th at p. 424.)
47
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
SEGAL, Acting P. J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
48