People v. Gonzalez CA4/3

Filed 2/25/21 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058949
v. (Super. Ct. No. 18CF0125)
IVAN GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
A jury convicted defendant Ivan Gonzalez of second degree implied malice
murder (Pen. Code, § 187, subd. (a)) and drunk driving offenses (Veh. Code, § 23153,
subds. (a) & (b).) The jury also found true allegations Gonzalez had suffered two
separate drunk driving convictions. (Veh. Code, § 23566.) The trial court sentenced
Gonzalez to an aggregate indeterminate prison term of 15 years to life, and a determinate
prison term of 7 years to be served consecutively.
Gonzalez’s appointed counsel filed an appellate brief setting forth the facts
of the case but advised the court she could find no issues to argue on Gonzalez’s behalf.
Gonzalez responded to our invitation to submit written argument on his own behalf by
filing a brief raising several issues.
We have examined the entire record, reviewed issues Gonzalez’s counsel
presented for our consideration and also considered Gonzalez’s brief, but have not found
an arguable issue. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Accordingly, we
affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
A. Fatal Collision and Convictions on All Charges and Allegations
In January 2018, after consuming several alcoholic drinks at a bar,
Gonzalez drove his vehicle on the wrong side of Interstate 5. He collided head on with a
vehicle traveling in the correct direction, killing the vehicle’s driver and severely injuring
the passenger.
At trial, the parties stipulated that three hours after the collision Gonzalez’s
blood alcohol content was more than double the legal limit. The prosecution presented a
video showing Gonzalez consuming alcohol at a bar with a woman and handing her his
keys when they left the bar, about two hours before the collision.
A California Highway Patrol officer testified he chased Gonzalez’s vehicle
in his patrol car for about five miles, with lights and sirens on, in excess of 100 miles an
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hour, and followed him until the collision. Postcollision data recovered from Gonzalez’s
vehicle showed it had been traveling around 99 miles an hour within seconds of the
collision and 74 miles an hour immediately before impact. The data and video footage
showed Gonzalez applied his brakes several times before the crash.
Gonzalez testified at trial, acknowledging his prior drunk driving
convictions and admitting he had been warned about the dangers of drunk driving.
Gonzalez did not dispute he consumed alcohol and voluntarily drove on the night of the
collision, but claimed he could not remember driving because, “after [his] second or third
drink, [he] lost concious[ness].”
Gonzalez testified about his enrollment in an alcohol abuse program at the
time of the collision. When Gonzalez claimed he had not consumed alcohol in the six
months leading up to the collision, the prosecutor recalled an earlier witness, Tonda
Cicali, the manager of Gonzalez’s alcohol abuse program. Cicali testified that, according
to the program’s records, Gonzalez had reported consuming alcohol on multiple
occasions within the six months leading up to the collision.
The trial court granted the prosecutor’s request to instruct the jury with
CALCRIM No. 3426, which explained voluntary intoxication and implied malice murder
liability. The court denied Gonzalez’s request to give CALCRIM No. 626, which dealt
with unconsciousness caused by voluntary intoxication.
B. Appeal
Gonzalez appealed his convictions and his appellate counsel filed a brief
under the procedures outlined in Wende, supra, 25 Cal.3d 436 and Anders v. California
(1967) 386 U.S. 738 (Anders). Counsel offered several issues for us to consider. She
advised Gonzalez about the nature of the Wende brief and informed Gonzalez he
personally could file a supplemental brief. Gonzalez filed a supplemental brief, joining
in the issues his appellate counsel suggested we consider and raising additional
challenges to the judgment.
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II
DISCUSSION
Gonzalez’s supplemental brief raised the same issues his appellate counsel
invited us to consider and added several other contentions. We must consider each of the
issues personally raised by a defendant when appellate counsel has filed a Wende brief.
(People v. Kelly (2006) 40 Cal.4th 106, 124.)
Gonzalez, relying on his counsel’s brief, contends (1) the trial court erred
when it denied Gonzalez’s request to instruct the jury with CALCRIM No. 626 on
unconsciousness as a partial defense to drunk driving implied malice murder; (2) the
court erred in denying Gonzalez’s request to instruct on gross vehicular manslaughter as
a lesser included offense of drunk driving implied malice murder; (3) the court erred in
imposing a consecutive three-year term for inflicting great bodily injury on the passenger
because injury to multiple victims is governed by the more specific one-additional-year
provision in Vehicle Code section 23558; and (4) defense counsel provided ineffective
assistance for failing to object to the prosecutor’s closing argument that this case was not
based on circumstantial evidence even though Gonzalez’s mental state only could have
been proven circumstantially.
These contentions do not present an arguable issue. The trial court
correctly denied Gonzalez’s request to instruct on unconsciousness per CALCRIM No.
626 because voluntary intoxication causing unconsciousness is not a defense to drunk
driving implied malice murder. (People v. Ferguson (2011) 194 Cal.App.4th 1070,
1081.) And no arguable issue exists concerning the failure to provide a lesser included
offense because gross vehicular manslaughter is not a lesser included offense of drunk
driving implied malice murder. (People v. Sanchez (2001) 24 Cal.4th 983, 992.)
As to sentencing, the trial court did not err when it imposed the great bodily
injury enhancement under Penal Code section 12022.7. (People v. Weaver (2007)
149 Cal.App.4th 1301, 1328, disapproved on another ground by People v. Cook (2015)
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60 Cal.4th 922, 939 [Legislature intended the three-year enhancement for great bodily
injuries to be applied broadly; Vehicle Code section 23558 does not limit the court’s use
of section 12022.7].)
Next, we see no arguable issue on whether Gonzalez’s trial counsel should
have objected to the prosecutor’s closing argument. Contrary to Gonzalez’s contention,
the record shows the prosecutor attempted to negate any notion the evidence was
“purely” circumstantial by emphasizing the direct evidence presented. More
importantly, the record shows the court properly instructed on the distinction between
circumstantial and direct evidence, and that the prosecutor could prove Gonzalez’s
required mental state for implied malice murder liability through circumstantial evidence.
(See People v. Cortez (2016) 63 Cal.4th 101, 131 [“‘[P]rosecutorial commentary should
not be given undue weight in analyzing how a reasonable jury understood . . .
instructions’”].)
Gonzalez’s supplemental brief presents four additional arguments for
reversing the judgment. He contends the trial court erred when it admitted certain
photographic evidence, excluded a defense chart about homicide crimes, instructed the
jury with CALCRIM No. 3426, and admitted Cicali’s testimony to impeach Gonzalez’s
testimony. None of these contentions present an arguable issue.
As to the photos, the trial court exercised its broad discretion in finding the
photos more probative than prejudicial, noting the victims were not shown in the photos
and were admitted only after the prosecution established the proper foundation. Nor is
there an arguable issue in the court’s exclusion of the homicide chart. This ruling applied
only to defense counsel’s opening statement. Opening statement generally is limited to a
description of the evidence counsel expects to present, but counsel may not argue
ultimate facts or delve into an explanation of the applicable law. Because the jury was
properly instructed, the exclusion of a homicide chart on opening statement could not
affect the outcome.
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Finally, we discern no arguable appellate issue in Gonzalez’s suggestion
that Cicali’s testimony should have been excluded based on a confidentiality agreement
not produced in the record. Gonzalez did not raise the issue in the trial court and
therefore forfeited the issue on appeal. (People v. Partida (2005) 37 Cal.4th 428, 434.)
Further, even if we assessed the issue on its merits, we would conclude that excluding the
testimony would not have resulted in either “a reversal or a modification of the
judgment” (People v. Johnson (1981) 123 Cal.App.3d 106, 109), given the strength of the
other evidence against Gonzalez presented at trial.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
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