People v. Berg CA2/8 ( 2024 )

Filed 1/8/24 P. v. Berg CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B322613
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA073101
v.
RONALD LEE BERG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Kathleen Blanchard, Judge. Affirmed.
Spolin Law, Aaron Spolin and Jeremy Cutcher for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Ronald Lee Berg challenges his conviction of two
counts of vehicular manslaughter with gross negligence. He
raises claims of insufficiency of the evidence and instructional
error. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
By Information filed February 1, 2019, Berg was charged
with two counts of vehicular manslaughter while making an
unsafe lane change (Veh. Code, § 22107) in violation of Penal
Code section 192, subdivision (c)(1), and one count of hit and run
driving resulting in death or serious injury to another person in
violation of Vehicle Code section 20001, subdivision (b)(2). Berg’s
first trial ended in a hung jury. Upon retrial he was convicted of
the two vehicular manslaughter counts and acquitted of hit and
run driving.
The trial court sentenced Berg to a total prison term of five
years four months.
The trial testimony established the following:
Maciej Makowiecki
At around 6 p.m. on March 11, 2017, Makowiecki was
driving westbound on Route 138 in Palmdale. Route 138 has two
lanes in each direction, divided by a center median. Makowiecki
was driving in the left lane. It was completely dark and drivers
had their headlights on.
A dark-colored Camaro was in the left lane in front of
Makowiecki; there was a small pickup truck between him and the
Camaro. The three cars were going about 50 miles per hour.
Makowiecki did not notice anything unusual about the Camaro or
how it was being driven.
2
In the right lane ahead of Makowiecki was a large delivery
truck. As Makowiecki was “closing the distance” to the delivery
truck, he noticed a burgundy-colored Subaru go past him in the
right lane. The Subaru was going about 10 miles faster than
everyone else. Makowiecki recalled paying attention to the
Subaru that had just passed him on the right because he is “a
careful driver” and was “aware of [his] surroundings.”
The Subaru was trying to pass Makowiecki and the small
pickup and Camaro in the caravan in front of him. At the “last
moment, [the Subaru driver] just cut to the left” from behind the
delivery truck in front of the Camaro. The Subaru “was trying to
cut in front of the traffic and pass; you know, not to be stuck
behind the truck.” The lane change was “[v]ery sudden” and “not
more than a second.” Makowiecki referred to it as an “unsafe
maneuver” and a “dick move.” When the Subaru changed lanes,
the rear of the Subaru was “within feet” of the front of the
Camaro. Makowiecki did not know the distance precisely but he
testified it was not “more than a car length.” He explained it
“would be virtually impossible for [him] to give [the] exact
distance. And possibly the distance was changing as the
maneuver was happening.” When asked how far he was from the
Subaru when the lane change happened, he said, “it was a
dynamic situation, but I would say between fifty and hundred
yards; closer to fifty.”1
1 During cross examination, Makowiecki was reminded by
defense counsel that he testified at the prior trial that he was
“maybe thirty to fifty yards” from the Subaru when the lane
change happened. He was also reminded that he previously told
the police he was about 70 to 100 yards from the Subaru.
3
Immediately after the Subaru changed lanes, Makowiecki
saw the Camaro veer “to the left with brakes locking—or the
wheels had locked and smoking and skidding to the left . . . ,
rotating to the left, going into the median . . . turning 90-degrees,
so now it’s facing south . . . and then oncoming traffic—a small
sized SUV, hitting it—t-boning it.” Makowiecki “instantly saw
what was about to happen” so at this point, he “started
traversing to the right . . . to the shoulder.” There was a “loud
bang” as the “impact happened.” It sounded like an explosion
and debris was “falling everywhere.” He said the impact
happened within “two, three seconds” after the Subaru changed
lanes.
Makowiecki then saw the Subaru “taking off.” In his
“assessment of the situation at the time, . . . following the
[Subaru’s] dick move, [the Subaru fled, which was] something
even worse.” He decided to follow the Subaru because he
determined that was the right thing to do. He saw the Subaru
“kind of weaving . . . from one lane to the other.” Makowiecki
accelerated to catch-up with the Subaru, which was going about
90 miles per hour, and finally reached an intersection with a
traffic light, where he was able to take a photograph of the
Subaru’s rear license plate. He then called 911.
Richard Saylor
On March 11, 2017, Saylor was traveling eastbound in light
traffic on Route 138 at around 6 p.m. He was driving a P.T.
Cruiser. It was “dark.” Saylor observed a collision and a car
came into his side of the roadway. He attempted to brake (his
skid marks were 57 feet length) but crashed into the car.
4
Gustavo Escobedo
At around 6 p.m. on March 11, 2017, Escobedo was also
driving eastbound on Route 138 with his wife Miriam Contreras
and two young daughters, aged 10 and four, when they were
involved in a collision. He was driving a Ford Fusion. Escobedo
did not recall getting into the accident. He remembered “people
banging on [his] car” and him going in and out of consciousness.
He recalled people removing his daughters from the car. A
firefighter told him that his daughters were airlifted to a hospital
and that his wife was killed in the accident. He had a broken leg,
a shattered hipbone, fractured ribs, and a punctured lung. One
of his daughters had a shattered ankle and knee, and lacerations
to her head. His other daughter had serious brain injuries,
became immobile and does not move or talk; she requires 24-hour
care.
Officer Jeremiah Hart2
At 6:55 p.m. on March 11, 2017, California Highway Patrol
Officer Jeremiah Hart was called to the scene of the collisions.
The Camaro was in the middle of lanes and was “cut in half.”
A Ford Fusion was on the shoulder of the roadway and a P.T.
Cruiser was off to the side. It was initially assessed that the
Camaro had crossed over the median and into the eastbound path
of the Ford Fusion.
One of the passengers in the Ford Fusion—Miriam
Contreras—succumbed to her injuries at the scene. Firefighters
extracted the driver of the Ford Fusion—Escobedo—and two
“little girls,” all of whom were airlifted by helicopter to hospitals.
2 Officer Hart died before retrial; his prior testimony was
read into evidence by stipulation.
5
The driver of the Camaro—22-year-old Jesse Sandoval—also died
at the scene; he was found “seated partially” with a seatbelt on
and “partially laying on the ground.”
About five days later, Officer Hart was contacted by
Makowiecki, who provided a picture of the Subaru’s license plate.
Officer Hart ran the license plate number and determined the car
belonged to Berg. He went to Berg’s address and observed a red
Subaru Forester in the driveway. Berg was cooperative, provided
a statement, and allowed Officer Hart to look at the vehicle.
Berg told Officer Hart he “remembered being at that
location at that time” but “did not see a traffic collision” and
“remembered an incident of a road rage.” He said there was a
vehicle that was chasing after him, from what he thought was
“due to a road rage incident that occurred behind him as he
changed lanes.” He recalled the lane change to Officer Hart—he
said he “was coming up on a series of vehicles and he had to
make a lane change. He said he checked his two spots [i.e.,] off of
his front bumper and off his rear bumper before he made the lane
change.” Berg heard tires screeching behind him “within half a
second” of the lane change “but when he looked back in his rear-
view mirror, he didn’t see anything.” Berg told Officer Hart he
did not hear the collision. Officer Hart thought Berg was not
being honest when he said he did not hear the sound of the
collision. When Berg noticed a car following him, he “attempted
to accelerate to get away from the vehicle.” He told Officer Hart
he “had assumed that he had potentially cut somebody off, which
had resulted in the tire screeching and that person had become
upset at him and was likely the person now following him.” Berg
did not call the police when he thought he was being followed.
6
Officer Hart opined that Berg made a lane change in front
of the Camaro, causing it to take evasive action, lose control, go
across lanes, and hit the Ford Fusion.
Okorie Okorocha3
Okorocha, a forensic toxicologist, has “analyzed and
investigated thousands of cases on just marijuana and driving
and the blood results.” He opined that the typical signs or
symptoms of someone driving under the influence of marijuana
includes “exceptionally slow driving, trouble maintaining lanes,
swerving, moving in a serpentine motion, braking, or speeding up
for no reason.”
Okorocha reviewed the medical records and coroner’s report
for victim Jesse Sandoval, the driver of the Camaro. Per
Okorocha, Sandoval had 99 nanograms per milliliter of THC4 in
his blood, which is “an extraordinarily high amount.” There
“would have to [be] very recent smoking to get to a level that high
. . . . [¶] If you have a level that high, that means recent use.
Recent use means there’s a pharmacological effect and we know
that marijuana causes distortions of time and space.” The
“drastically high” marijuana level would “undoubtedly” cause
driving impairment.
Sandoval also had a “pretty low” level of Xanax in his
system, about 18 nanograms per milliliter. A combination of
3 Okorocha was unavailable to testify at the retrial; his prior
testimony was read into evidence by stipulation. Two lab reports
analyzing a blood sample of Jesse Sandoval were also received
into evidence by stipulation.
4 THC is short for tetrahydrocannabinol, the active
ingredient in marijuana.
7
marijuana and Xanax would have “a synergistic effect” and the
“pharmacological effect would be distortions of time and space.”
Okorie opined, “It would affect first the reaction time of the
person, the perception as to the space or distance between the
two vehicles, or the driver and the vehicle in front of him. Time
would be distorted, in a sense you would think you have more
time than you actually do to react.” It may also “possibly” make a
person think they had less time to react.
Okorocha had read and was questioned about a study
conducted in 2016 by the American Automobile Association
(AAA) and the National Highway Traffic Safety Administration
(NHTSA).5 The study concluded that “a quantitative threshold or
per se laws for THC following cannabis use cannot be specifically
supported.” The study also concluded, “[W]hereas the
impairment effects of various concentration levels of alcohol . . .
are well understood, there’s little evidence available to link
concentrations of other drugs to driver performance.”
The prosecutor asked Okorocha, “Isn’t that [study’s
findings] exactly opposite of what you just said?” Okorocha
replied, “I’m dealing with levels . . . I’ve never seen before. If
there was a per se level, I would absolutely say that 99
nanograms per milliliter is above it.” The prosecutor countered,
“But what this [study] is saying is that per se levels, when it’s
having to do with marijuana, are not specifically supported. That
we need to rely on other things such as [field sobriety tests],
right? . . . How they were driving? Other effects that the drug
5 Okorocha testified the NHTSA “run[s] the show as far as
laws being made and regulations for highways and driving.”
AAA has “an institute that tends to run studies on driving under
the influence, reckless driving, things like that.”
8
has on them, other than just saying you have a certain level, you
are under the influence. It’s not like alcohol; correct?” To which
Okorocha responded, “Correct.” Okorocha also agreed that some
people can be at higher levels of marijuana and have no signs or
symptoms of being under the influence, whereas some people
with low levels can exhibit signs of being under the influence.
Okorocha stated he “disagree[s] with NHTSA all the time.”
Okorocha opined that “[w]ith the levels in this case, I would
absolutely say that the [AAA] and NTSA findings don’t apply.”
Okorocha testified that someone reacting within one-half of
a second to being cut off was not a long time to react. When
asked if half a second reaction time signifies someone that is
“delayed in their movements or in their motions,” he replied, “I
wouldn’t think so.”
Berg did not testify. He called two character witnesses—
Kasie Mummery and Kathleen Bonine—who attested to his
truthfulness.
DISCUSSION
I. Substantial Evidence Supports the Convictions
Appellant argues insufficient evidence supports the
convictions for vehicular manslaughter with gross negligence.
We disagree and conclude the convictions are supported by
substantial evidence.
A. Standard of Review
When reviewing a challenge to the sufficiency of the
evidence, we ask whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt. (People v. Navarro (2021) 12 Cal.5th 285, 302.)
9
We examine the record independently for substantial evidence—
that is, evidence which is reasonable, credible, and of solid value
that would support a finding beyond a reasonable doubt. (Ibid;
see People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)
“ ‘ “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.” ’ ” (People v. Manibusan (2013)
58 Cal.4th 40, 87.) Reversal on the ground of insufficient
evidence is unwarranted unless it appears that upon no
hypothesis whatever is there sufficient substantial evidence to
support the conviction. (People v. Bolin (1998) 18 Cal.4th
297, 331; People v. Cravens (2012) 53 Cal.4th 500, 508; People v.
Nicolas (2017) 8 Cal.App.5th 1165, 1171.)
B. Applicable Law
Penal Code section 192, subdivision (c)(1), defines felony
vehicular manslaughter as “driving a vehicle in the commission
of an unlawful act, not amounting to a felony, and with gross
negligence; or driving a vehicle in the commission of a lawful act
which might produce death, in an unlawful manner, and with
gross negligence.” The required act must either be “a
misdemeanor or infraction” or “a negligent act.” (People v.
Thompson (2000) 79 Cal.App.4th 40, 53 (Thompson).)
The meaning of gross negligence has been explained many
times. People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett),
asserts: “Gross negligence is the exercise of so slight a degree of
care as to raise a presumption of conscious indifference to the
consequences. [Citation.] ‘The state of mind of a person who acts
with conscious indifferences to the consequences is simply, “I
10
don’t care what happens.” ’ [Citation.] The test is objective:
whether a reasonable person in the defendant’s position would
have been aware of the risk involved.” Gross negligence does not
include “inattention, mistaken judgment, or misadventure . . . .”
(Id. at p. 1037, fn. 3.) Gross negligence involves aggravated,
reckless, or flagrant disregard for human life, or indifference to
consequences of one’s conduct. (Thompson, supra, 79 Cal.App.4th
at p. 54.)
A defendant’s particular mind state is also relevant. “In
determining whether a reasonable person in [the] defendant’s
position would have been aware of the risks, the jury should be
given relevant facts as to what [the] defendant knew, including
[the defendant’s] actual awareness of those risks.” (Ochoa, supra,
6 Cal.4th at p. 1205, italics omitted.) Thus, while a defendant
who lacks awareness of the risk may still be grossly negligent “if
a reasonable person would have been so aware,” a defendant who
“actually appreciated the risks involved in a given enterprise, and
nonetheless proceeded with it,” could still be found grossly
negligent even if “a reasonable person in [the] defendant’s
position would [not] have recognized the risk.” (Ibid., italics
omitted.)
Put another way, gross negligence occurs when the
defendant’s acts are such a departure from what would be the
conduct of “ ‘ “an ordinarily prudent or careful [person] under the
same circumstances as to be incompatible with a proper regard
for human life, or, in other words, a disregard of human life or an
indifference to consequences.” ’ ” (People v. Alonzo (1993)
13 Cal.App.4th 535, 540.) “ ‘The facts must be such that the fatal
consequence of the negligent act could reasonably have been
foreseen.’ ” (People v. Clem (2000) 78 Cal.App.4th 346, 352; see
11
also People v. Odom (1991) 226 Cal.App.3d 1028, 1032.)
A “finding of gross negligence required to convict a defendant of
gross vehicular manslaughter . . . may be based on the overall
circumstances surrounding the fatality.” (Bennett, supra,54 Cal.3d at p. 1040.)
“The finding of an operator’s gross negligence in driving a
motorcar, when supported by substantial evidence, is conclusive
upon the reviewing court and can be reversed only when that
court becomes convinced by the evidence that freedom from gross
negligence was so clearly established that reasonable minds could
not differ upon the question.” (People v. Flores (1947)
83 Cal.App.2d 11, 14.)
C. Analysis
Berg argues there was insufficient evidence to convict him.
He contends that even “[a]ccepting the testimony of
[Makowiecki], as the jury did, there is no evidence which can
support a finding of gross negligence.” He contends an objective
person in his position, who was driving at a faster rate of speed
and was already one car length ahead, would not have been
aware of an enhanced risk of danger or death to human life from
a lane change. Thus, there was insufficient evidence to show that
the fatal consequence of the lane change could reasonably have
been foreseen.
We disagree and find a reasonable jury could have found
Berg was grossly negligent in making an unsafe lane change in
front of the Camaro, which caused the collisions resulting in the
deaths of Sandoval and Contreras.
The trial court instructed the jury with CALJIC No. 8.90,
which provides that gross negligence “refers to a negligent act
which is aggravated, reckless or flagrant, and which is such a
12
departure from the conduct of an ordinarily prudent, careful
person under the same circumstances as to be contrary to a
proper regard for danger to human life or to constitute
indifference to the consequences of those acts. The facts must be
such that the consequences of the negligent act could reasonably
have been foreseen and it must appear that the danger to human
life was not the result of inattention, mistaken judgment or
misadventure, but the natural and probable result of an
aggravated, reckless or flagrantly negligent act.” The jury was
also instructed with CALCRIM No. 592, which provides that
gross negligence “involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with gross
negligence when” he acts “in a reckless way that creates a high
risk of death or great bodily injury,” and “[a] reasonable person
would have known that acting in that way would create such a
risk. [¶] In other words, a person acts with gross negligence when
the way he . . . acts is so different from how an ordinarily careful
person would act in the same situation that his . . . act amounts
to disregard for human life or indifference to the consequences of
that act.”
Here, viewing the evidence in the light most favorable to
the jury verdict, we find there is substantial evidence to support
Berg’s conviction. Makowiecki and Saylor both testified that it
was “completely dark” around 6 p.m. on the date of the accident.
Makowiecki testified that he did not notice anything unusual
about how the Camaro was being driven. Makowiecki further
testified that everyone was going about 50 miles per hour, except
Berg who was driving about 10 miles faster than everyone else.
Makowiecki testified that Berg drove past him and “was trying to
cut in front of the traffic and . . . not [be] stuck behind the truck.”
13
Berg at the “last moment . . . just cut to the left” from behind the
delivery truck to within feet of the front of the Camaro, which
Makowiecki described as a “[v]ery sudden” (i.e., “not more than a
second”) lane change, an “unsafe maneuver,” and a “dick move.”
Makowiecki also testified that the Camaro veered left and the
brakes started skidding “immediately after” Berg’s lane change,
resulting in the collisions that claimed the two lives.
Given the darkness, Berg’s faster speed, his abrupt lane
change to within feet of the front of the Camaro, we conclude
Berg demonstrated an “exercise of so slight a degree of care as to
raise a presumption of conscious indifference to the
consequences.” (Bennett, supra, 54 Cal.3d at p. 1036.) Berg told
Officer Hart that he “was coming up on a series of vehicles and he
had to make a lane change. He said he checked his two spots
[i.e.,] off of his front bumper and off his rear bumper before he
made the lane change.” (Italics added.) The jury could have
reasonably rejected this assertion, as appellant did not explain
why he “had to” make a lane change, much less one that could
not be made with reasonable safety.6 The jury could have further
found Berg not credible in his statement to Officer Hart that he
had “checked his two spots” before making the lane change, as
the Camaro was “within feet” of his Subaru at the time of the
lane change. This is made even more likely given Officer Hart’s
opinion that Berg was not being honest when he said he did not
hear the sound of the accident despite hearing the “tires
screeching behind him” seconds before.
6 The jury was instructed that Vehicle Code section 22107
provides, “No person shall . . . move right or left upon a roadway
until such movement can be made with reasonable safety.”
14
Berg contends the fatal consequences of his lane change
were “entirely unforeseeable, and occurred due to the severe
impairment of Mr. Sandoval.” We are not persuaded.
A reasonable jury could have found that Sandoval’s driving was
not impaired, notwithstanding the marijuana in his blood.
Makowiecki testified he did not notice anything unusual about
how the Camaro was being driven. Plus, Okorocha confirmed
that some people can be at higher levels of marijuana and have
no signs or symptoms of being under the influence and some
people with low levels can exhibit signs of being under the
influence; whether Sandoval was indeed impaired was not
established.
Lastly, the jury was instructed with CALJIC No. 3.41,
which provides, “When the conduct of two or more persons
contributes concurrently as a cause of the death . . . , the conduct
of each is a cause of the death . . . if that conduct was also a
substantial factor contributing to the result.” This allows the
jury to find or conclude that notwithstanding the marijuana in
Sandoval’s system, appellant’s very sudden, unsafe lane change
contributed to the accident/cause of death.
Based on the foregoing, we conclude substantial evidence
supports Berg’s convictions of vehicular manslaughter with gross
negligence in violation of section 192, subdivision (c)(1). (Rideout
v. Superior Court (1967) 67 Cal.2d 471, 474.) In light of our
conclusion, we do not address Berg’ alternative argument that
the evidence is insufficient to convict him of the lesser included
offense of vehicular manslaughter without gross negligence.
15
II. The Trial Court Did Not Err When It Declined to
Instruct the Jury with CALJIC No. 2.21.2
At the retrial, Makowiecki was asked how far he was from
the Subaru when the lane change happened. He testified, “it was
a dynamic situation, but I would say between fifty and hundred
yards; closer to fifty.” This was different from his testimony at
the first trial in 2019 where he said he was “maybe thirty to fifty
yards” from the Subaru when the lane change happened. It also
differed from his statement to the police in 2017 that he was
about 70 to 100 yards from the Subaru.
Berg asked the court to instruct the jury with CALJIC No.
2.21.2 as to Makowiecki’s testimony. CALJIC No. 2.21.2
provides: “A witness who is willfully false in one material part of
his or her testimony, is to be distrusted in others. You may reject
the whole testimony of a witness who willfully has testified
falsely as to a material point, unless, from all the evidence, you
believe the probability of truth favors his or her testimony in
other particulars.”
The trial court refused the instruction and stated: “My view
of the evidence from the eyewitness in this case is certainly there
were discrepancies in, for example, distance estimates that he
gave at this trial versus to the police or in the prior proceedings,
all of which really do fall in the same range, and he explained to
the jury that his recollection two years later is different. That, to
me, falls into the category of . . . commonplace misrecollection
and things like that that the jury’s already instructed on.” The
court observed that “[w]illfully false is something materially
different” and that there is no “indication that [Makowiecki] is
doing anything other than giving his best to try [to] remember
now, however many, two, three years later. And he’s been
16
basically consistent all along. I just don’t think that there’s any
evidentiary basis for giving that instruction, and I think that
giving that instruction would be very confusing for the jury.”
On appeal, Berg argues that once the trial court
determined there were discrepancies in Makowiecki’s testimony,
it was required to instruct on willfully false testimony and its
failure to do so is reversible error.
A. Standard of Review
We review the legal adequacy of jury instructions de novo.
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v.
Cole (2004) 33 Cal.4th 1158, 1210.) The proper test for judging
the adequacy of instructions is to decide whether the trial court
“fully and fairly instructed on the applicable law.” (People v.
Partlow (1978) 84 Cal.App.3d 540, 558.) “ ‘In determining
whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole. We
must also assume that the jurors are intelligent persons and
capable of understanding and correlating all jury instructions
which are given.’ ” (People v. Yoder (1979) 100 Cal.App.3d 333,
338; see also People v. Sanchez (2001) 26 Cal.4th 834, 852
[explaining jurors are “presumed able to understand and
correlate instructions”].) “Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.” (People
v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
B. Applicable Law
CALJIC No. 2.21.2 describes a settled principle for
evaluating witness credibility and is a correct statement of the
law. (People v. Millwee (1998) 18 Cal.4th 96, 159, fn. 28; People v.
17
Beardslee (1991) 53 Cal.3d 68, 94; People v. Allison (1989)
48 Cal.3d 879, 895 (Allison).) It is phrased in neutral fashion and
applies to witnesses called by either side. (Millwee, at p. 159.)
CALJIC No. 2.21.2 “ ‘does nothing more than explain to a jury
one of the tests they may employ in resolving a credibility
dispute.’ ” (People v. Murillo (1996) 47 Cal.App.4th 1104, 1108
(Murillo).)
C. Analysis
We agree with the trial court that there was no evidence
from which it could be inferred that Makowiecki willfully gave
false testimony. CALJIC No. 2.21.2 should only be given when
there is an evidentiary basis to support it, and there was no
evidence from which to infer or find that any witness in this case
gave willfully false testimony. (Allison, supra, 48 Cal.3d at
p. 895.) Based on our review of Makowiecki’s testimony at this
retrial in comparison to his prior testimony in 2019 and
statements to the police in 2017, we find there were no material
inconsistencies that triggered the court’s duty to give CALJIC
No. 2.21.2. The entirety of the record fails to reflect any
deliberate falsehoods, vague or improbable testimony, or even
inconsistencies that would have supported CALJIC No. 2.21.2.
During retrial, Makowiecki testified that the distance between
him and appellant’s Subaru during the lane change was between
50 and 100 yards; he specifically said that it “was a dynamic
situation” changing with every passing second. At the prior trial,
Makowiecki had testified that the distance was “maybe” 30 to 50
yards at the time of the lane change. He had previously told the
police that he was about 70 to 100 yards from the Subaru. These
estimates all fall within the same range — 50 to 100, 30 to 50,
and 70 to 100 yards. Moreover, the passage of time—five years
18
since the accident—may also be a factor causing innocent
misrecollection of the specific yard distance between Makowiecki
and Berg’s Subaru at the time of the lane change.
Makowiecki acknowledged the discrepancies between his
current testimony, his prior testimony, and his initial statements
to Officer Hart. He readily admitted his distance ranges were
“estimates.” Makowiecki’s recollection of the distances between
vehicles did not warrant an instruction on false testimony,
particularly since he did not, in the end, testify to the distance
that was most unfavorable to Berg.
However, assuming for the sake of argument that the trial
court erred, the error was harmless. The trial court instructed
the jury with CALJIC No. 2.20, which cautioned jurors to act as
the sole judge of a witness’s believability, including the “existence
or nonexistence of any fact testified to by the witness.” The jury
was instructed it could consider “anything that has a tendency
reasonably to prove or disprove the truthfulness of the testimony
of the witness.” The court also instructed the jury with CALJIC
No. 2.27, that the jury “should give the testimony of a single
witness whatever weight [the jury] think[s] it deserves.” The jury
also heard CALJIC No. 2.13, which stated the jury can consider a
witness’s prior consistent and inconsistent statements “not only
for the purpose of testing the credibility of the witness, but also
as evidence of the truth of the facts as stated by the witness on
that former occasion.” Finally, the court gave CALJIC No. 2.21.1,
which provides, “Discrepancies in a witness’s testimony . . . do
not necessarily mean that any witness should be discredited.
Failure of recollection is common. Innocent misrecollection is not
uncommon.”
19
These instructions rendered the jury well aware of its duty
to assess the credibility and probative value of every aspect of
Makowiecki’s testimony. Jurors are presumed to be intelligent
people capable of understanding and correlating jury
instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Absent an indication to the contrary, we presume the jury
followed the court’s instructions. (People v. Gray (2005)
37 Cal.4th 168, 217.)
Murrillo is apt. There the court found harmless the trial
court’s failure to give CALJIC No. 2.21.2 because defense counsel
was able to and did argue the substance of the instruction to the
jury and the court charged the jury with other instructions
covering the same ground, including CALJIC Nos. 2.13 (evidence
of a prior inconsistent statement should be used to evaluate
witness’s credibility) and 2.20 (factors to consider in evaluating
witness’s credibility). (Murillo, supra, 47 Cal.App.4th at p. 1108.)
Here, as in Murillo, the trial court charged the jury with
CALJIC Nos. 2.13 and 2.20, as well as CALJIC Nos. 2.21.1 and
2.27. The instructions specified above “cover[ed] essentially the
same ground” as CALJIC No. 2.21.2. (Murillo, supra,
47 Cal.App.4th at p. 1108.) We find these other instructions
given to the jury adequately instructed it on the evaluation of
witness credibility. Given the entirety of the instructions on how
to evaluate witness credibility, there is no reasonable probability
that a different result would have obtained had the court given
CALJIC No. 2.21.2. (Murillo, at p. 1108.) Any error in omitting
CALJIC No. 2.21.2 was harmless. (People v. Watson (1956)
46 Cal.2d 818, 836–837.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
21