People v. Lopez

Filed 10/26/18
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B282867

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA440645)
v.

LAURO LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed
in part; reversed and remanded in part with instructions.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Yun K. Lee and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.

*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for publication with the exceptions of
parts I, II, and IV of the Discussion section.
 INTRODUCTION
While driving under the influence of alcohol, appellant
Lauro Lopez made a left turn in front of an oncoming motorcycle,
hitting and killing the rider. A jury convicted appellant of second
degree murder and felony hit and run driving resulting in death
or serious injury.
Appellant challenges his conviction in several ways. First,
he argues that the trial court erred by admitting evidence of the
advisement he received after a prior conviction for driving under
the influence. Second, appellant raises several claims of error
related to the jury instructions. Third, he contends his conviction
on both counts must be overturned due to his counsel’s concession
at trial that appellant committed the hit and run, coupled with
the absence of affirmative evidence that he knowingly waived his
constitutional trial rights. Finally, he asserts cumulative error
and sentencing error.
We conclude that defense counsel’s statements during
argument were tantamount to a guilty plea on the hit and run
offense. Moreover, the record is silent as to whether appellant
gave informed consent to waive his right to trial on this count.
Under these circumstances and applying recent case law from the
United States and the California Supreme Courts, we reverse the
conviction on the hit and run charge. We otherwise affirm.
PROCEDURAL HISTORY
The Los Angeles County District Attorney charged
appellant in an information with one count of second degree

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murder (Pen. Code, § 187, subd. (a); count one)1 and one count of
felony hit and run driving resulting in death or serious injury to
another person (Veh. Code, § 20001, subd. (b)(2); count two).
Appellant pled not guilty to both counts and the matter
proceeded to jury trial.
The jury found appellant guilty on both counts. The court
sentenced appellant to 15 years to life on the murder charge and
three years on the hit and run charge, to run consecutively.
Appellant timely appealed.
FACTUAL BACKGROUND
The following evidence was adduced at trial.
I. Prosecution Evidence
A. 2013 drunk driving conviction
Appellant was previously arrested for driving under the
influence on January 7, 2013. He pled no contest to driving
under the influence with a blood alcohol content of .08 percent or
higher in violation of Vehicle Code section 23152, subdivision (b),
and admitted as part of his plea that his blood alcohol level was
actually .20 percent or higher. Before entering his plea,
appellant signed a written advisement, which was also read to
him by a Spanish interpreter. It included the following Watson2
advisement: “I understand that being under the influence of
alcohol or drugs or both impairs my ability to safely operate a
motor vehicle. Therefore, it is extremely dangerous to human life
to drive while under the influence of alcohol or drugs or both. If I
continue to drive while under the influence of alcohol or drugs or
both, and as a result of my driving someone is killed, I can be

All further statutory references herein are to the Penal
1

Code unless otherwise indicated.
2People v. Watson (1981) 30 Cal.3d 290 (Watson).

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charged with murder.” In addition, during the plea hearing, the
judge repeated the Watson advisement.
The terms of appellant’s plea required him to complete a
nine-month alcohol education program and a Mothers Against
Drunk Driving (MADD) victim impact program, and barred him
from driving without a valid driver’s license or with any
measurable amount of alcohol in his system. Appellant was
placed on probation for three years.
Pursuant to the terms of his plea, appellant completed a
nine-month alcohol program starting in February 2013. The
program, given in Spanish, included 23 group sessions, six
alcoholic education sessions, 10 interviews, and 19 Alcoholics
Anonymous meetings. Upon completion, appellant filled out an
exit form stating that he would not drink and drive.
In November 2013, appellant also attended a victim impact
panel, an educational program for driving under the influence
(DUI) offenders. He registered for and completed the course in
English. As part of the program, the administrator testified that
she discussed the Watson advisement with the participants and
projected the text on a big screen. She would customarily tell the
story of another class participant who attended the class twice
and later caused an accident that killed two people.
B. 2015 accident
On October 13, 2015 at approximately 7:15 p.m., appellant
approached the intersection of Soto Street and 57th Street in
Huntington Park. He was driving his white pickup truck and his
29-year-old son was in the passenger seat. Appellant made a left
turn onto 57th Street in front of an oncoming motorcycle. He
struck the motorcycle, knocking its rider to the ground.
Appellant then drove away from the scene.

4
 A bystander called 911, reporting that “a guy came, took a
left. And nailed a woman or man on a motorcycle.” He described
the vehicle as a white truck and told the operator where the truck
was heading. The 911 call was played for the jury at trial.
Detective Garey Staal of the Huntington Park Police
Department (HPPD) testified that he and his partner saw the
motorcycle driving on Soto Street before the accident. The
motorcycle was travelling a “little faster than the normal traffic
but . . . nothing that was concerning as far as speed.” They came
upon the scene of the accident and saw the same motorcycle on
the ground. Detective Staal ran toward the victim on the ground
and began performing CPR, assisted by others at the scene.
Paramedics arrived less than five minutes later. The victim was
transported to the hospital and died shortly thereafter from his
injuries.
Staal and his partner gathered a description of the suspect
vehicle and its direction of travel from witnesses at the scene;
they broadcast that information over their police radio. The
detectives also noticed a license plate lying in the street, which
appeared to be the front license plate from the suspect vehicle.
Staal’s partner wrote down the license plate number and gave it
to police dispatch; dispatch advised him that the vehicle with
that plate number was registered to appellant.
A short time later, a police officer who had heard the
collision and then heard about the suspect over the police radio
spotted appellant’s truck parked in a nearby business parking lot.
As the officer walked over to the truck, he noticed appellant and
his son standing in a yard next to the vehicle. The officer
approached and asked in Spanish if either of them was driving
the pickup truck. The officer testified at trial that in response,

5
appellant pointed to his son, who shook his head no. The officer
then called for assistance.
HPPD officer Martin Magallanes arrived a few moments
later. He noted that the front license plate on appellant’s truck
was missing and the rear plate matched the number from the
plate at the scene. He spoke to appellant in Spanish and testified
that he could smell alcohol on appellant’s breath. Appellant
acknowledged to Magallanes that he had consumed three 24-
ounce beers between 5:00 and 6:00 p.m. He stated he did not feel
the effects of the alcohol, but Magallanes noticed appellant
swaying. Appellant also admitted he had been driving. He told
Magallanes that his truck did not have any mechanical problems
and he knew he had collided with a motorcycle. He did not ask
about the condition of the rider.
Magallanes administered a field sobriety test to appellant,
which indicated appellant was impaired. Appellant was also
given two breath tests, one at 8:10 and one at 8:12 p.m.; both
showed his blood alcohol content was 0.14 percent. That result
was confirmed by a blood draw taken at 8:30 p.m.3 Appellant
was arrested.
Magallanes interviewed appellant in jail that evening
around 10:00 p.m. Appellant agreed he had “too many beers” and
knew driving after drinking was a crime. He said he had one
beer at work, then went to the liquor store to get beer, drove
home, and drank “two big Modelos” at home. He told Magallanes

3A prosecution expert opined that any driver would be
impaired at the level of .08 percent or above. Given a
hypothetical scenario matching the facts of the case, he also
opined that the driver’s blood alcohol content at the time of the
accident would be between 0.14 and 0.16 percent.

6
that he was not planning to leave his house that night, but he
decided to drive his son to a friend’s house to see about a job. At
the time of the accident, he saw the motorcycle approaching but
thought he would be able to make the left turn safely before the
collision. He did not see the motorcyclist after the crash.
Appellant then left the scene because he was scared he would get
arrested because he had been drinking. His son told him to
remain at the scene. Appellant also stated he was not planning
to report the collision that night because he was intoxicated.
HPPD detective Osvaldo Cervantes interviewed appellant
on October 14, 2015. Excerpts from the video of that interview
were played for the jury. Appellant reiterated that he drank
three 24-ounce Modelo beers, finishing about an hour before the
accident. When asked if he thought he was drunk, appellant
responded, “Well, on the one hand, yes, but on the other hand I
think - yes, I was a little. I’m not going to say no. But . . . my kid
was going . . . and I thought it easier that I take the truck rather
than him.” The detectives also asked why appellant drove if he
knew he was drunk. He responded, “that was my mistake.” He
said the admonition he received with his prior conviction was
that “I wasn’t to drive again with alcohol” and knew he couldn’t
drive for three years. He also knew he was still on probation
from his prior conviction.
Appellant told the detectives that he was “going to make a
left turn” and claimed he saw the other driver “coming at a high
velocity on his motorcycle. But, there were no cars. He came
hard.” Appellant thought he was going to be able to turn in front
of the motorcycle, but they collided. His son said “Wait Dad!”
before the turn, but appellant went ahead because he thought he
could beat the motorcycle. After he felt the crash, appellant

7
reversed his truck to move away from the accident and then left
the scene because he was scared. He claimed he did not see the
condition of the motorcyclist and did not see him on the ground.
His son wanted to get out and check on the victim, but appellant
did not stop.
Appellant admitted to the detectives that he thought the
victim was hurt and he “came out of it badly.” Before they
advised appellant that the victim had died, the detectives asked
appellant if he wanted to know how serious the victim’s injuries
were. Appellant responded, “If you want to tell me.” He later
stated that he was sorry but that it was also the victim’s fault
because he (the victim) was driving so fast.
II. Defense evidence
The defense did not call any witnesses and appellant did
not testify.
DISCUSSION
I. Admission of Watson Advisements
At trial, the prosecution proffered evidence of the Watson
advisements appellant received prior to the 2015 collision,
including the written and oral plea advisements from his 2013
DUI plea and the subsequent coursework appellant completed as
part of that plea. Prior to trial, the parties and the court
acknowledged the relevance and importance of this evidence to
establish that appellant knew of the dangers of drinking and
driving prior to the collision, and therefore acted with the implied
malice required for murder.4 Appellant now contends this

4Murder is “the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) Malice may be express
or implied. (§ 188.) The jury here was instructed with CALCRIM
No. 520, which provides that the defendant acted with implied

8
evidence was admitted in error for two reasons. First, he argues
that by admitting a statement from the prior court that it was
“required” to give the Watson advisement as part of the plea, the
trial court here “created a conclusive presumption” that “as a
matter of law, driving under the influence ‘is extremely
dangerous to human life,” thereby directing a verdict on the
physical component of implied malice. Second, he contends the
Watson advisements admitted at trial were inadmissible hearsay.
Respondent counters that both claims are forfeited as appellant
failed to raise them below. We agree that these arguments are
forfeited.
Generally, failure to object to the admission of evidence at
trial forfeits an appellate claim that such evidence was
improperly admitted. (See Evid. Code, § 353, subd. (a); People v.
Partida (2005) 37 Cal.4th 428, 435 [defendant on appeal “may not
argue that the court should have excluded the evidence for a
reason different from his trial objection”]; People v. Stevens (2015)
62 Cal.4th 325, 333 [forfeiture of objection to hearsay evidence].)
The purpose of requiring a specific objection is to “alert the trial
court to the nature of the anticipated evidence and the basis on
which exclusion is sought, and to afford the People an
opportunity to establish its admissibility.” (People v. Williams
(1988) 44 Cal.3d 883, 906.)
Here, appellant failed to object below to the admission of
the Watson advisements on either ground he now asserts. He did

malice if: “(1) He intentionally committed an act; (2) The natural
and probable consequences of the act were dangerous to human
life; (3) At the time he acted, he knew his act was dangerous to
human life; and (4) He deliberately acted with conscious
disregard for human life.” (See also Watson, supra, 30 Cal.3d at
p. 295.)

9
object prior to trial to the prosecutor’s request to admit the
underlying facts of the prior DUI. He also objected during trial to
the admission of the plea waiver form, on the basis that it was
unclear whether appellant had initialed the Watson advisement
on the form.5 He raised no other objections to admission of any of
the Watson advisement evidence.
Moreover, appellant did not object as both the prosecutor
and the court repeatedly stressed the significance of the Watson
advisements to the issue of appellant’s intent. For example, at a
pretrial evidentiary hearing, the court denied the prosecutor’s
request to admit the underlying facts of the prior DUI, but
admitted evidence of the plea, advisements, and subsequent
education. In doing so, the court noted: “This is a Watson
murder . . . because of the specific education and knowledge that
[appellant] obtained through the Watson advisement, through the
attendance at the AA meetings and the M.A.D.D. presentation,
and all of that. And in the absence of that . . . without the
evidence of the advisement and the education . . . the prosecution
would not have filed a Watson murder in this case.” The court
therefore ruled that the prior conviction was admissible and “all
of the educational aspects and advisements are in.” During that
hearing, the prosecutor argued that the “central issue in this case
is going to be intent; that being implied malice and knowledge of
the dangers of driving under the influence resulting in death to
another.” Defense counsel acknowledged that a lot “of evidence
about what Mr. Lopez learned after his arrest [in 2013] is going
to come in,” and objected only to the admission of the underlying
facts of the DUI.

5Inhis reply brief, appellant cites only this objection in
response to respondent’s forfeiture argument.

10
 Similarly, when defense counsel objected during trial
regarding the unclear initials on the plea waiver, the prosecutor
again argued that the evidence “goes to the central issue” of
defendant’s knowledge regarding drinking and driving. The
court overruled appellant’s objection. Had appellant objected
below on the grounds he now asserts, the trial court could have
addressed the asserted errors and the prosecution would have
had the chance to cure them. For example, with respect to
appellant’s claim that the court created a conclusive
presumption, the prosecution could have omitted the court’s
prefatory statement that “I’m required to advise you” from the
evidence of the plea. Similarly, with respect to the hearsay
objection, the prosecutor could have sought to admit the
advisements through an appropriate witness or stipulation.
Appellant also argues that these objections would have
been futile. The record does not support this claim. First,
regarding his conclusive presumption claim, he suggests that
once the trial court overruled his objection regarding the initials
on the plea waiver form, “any other Watson advisement objection
would have been futile.” He does not explain why he would have
been unable to object to the same evidence on different grounds.
Second, with respect to the hearsay objection, appellant
acknowledges that the primary case upon which he relies, People
v. Sanchez (2016) 63 Cal.4th 665, was issued almost a year before
his trial. As such, he is not entitled to rely on the rule that an
objection is not required when it “is based on a change in the law
that the appellant could not reasonably have been expected to
foresee.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308,
1334.)

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 Finally, appellant contends that his assertion of a due
process violation flowing from the purported conclusive
presumption has not been forfeited. But the cases appellant cites
apply only to a narrow subset of due process arguments that may
be raised for the first time on appeal. Where new arguments “do
not invoke facts or legal standards different from those the trial
court itself was asked to apply, but merely assert that the trial
court’s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of
violating the Constitution,” then to that limited extent,
“defendant’s new constitutional arguments are not forfeited on
appeal.” (People v. Ervine (2009) 47 Cal.4th 745, 771, fn. 12;
accord People v. Partida, supra, 37 Cal.4th at p. 435.) This
exception to forfeiture does not apply here. Appellant has not
merely applied a due process gloss to objections he raised below.
Instead, he has raised entirely new objections and included a due
process claim. Under these circumstances, appellant has
forfeited his objections to the Watson advisements.
II. Jury Instructions
Appellant raises three separate claims of instructional
error related to his murder conviction. First, he asserts that the
trial court incorrectly instructed the jury on the definition of
implied malice. Second, he argues the court had a sua sponte
duty to give a unanimity instruction as to the two separate acts
that could have served as the basis for a murder conviction.
Finally, he claims the trial court erred in refusing to instruct on
lesser included offenses. We review such claims de novo. (See
People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Waidla
(2000) 22 Cal.4th 690, 739 [de novo review of failure to instruct
on lesser-included offense].)

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 A. Definition of implied malice
Appellant challenges the court’s instruction to the jury on
implied malice. The trial court instructed the jury with
CALCRIM No. 520, which provides, in pertinent part, that a
defendant acted with implied malice if he or she committed an
act and the “natural and probable consequences of the act were
dangerous to human life.” Appellant did not object to this portion
of the instruction at trial.
Our Supreme Court has explained that two lines of
decisions have developed reflecting judicial attempts to
“‘translate this amorphous anatomical characterization of implied
malice into a tangible standard a jury can apply.’” (People v.
Nieto Benitez (1992) 4 Cal.4th 91, 103 (Nieto Benitez).) As a
result, the physical component of implied malice can be phrased
in two ways. (Id. at pp. 103-104; People v. Watson, supra, 30
Cal.3d at p. 300.) In one formulation, implied malice exists when
a person commits “an act, the natural consequences of which are
dangerous to life.” (Nieto Benitez, supra, 4 Cal.4th at p. 104.) In
the alternate formulation, malice may be implied when a person
“does an act with a high probability that it will result in death.”
(Ibid., citing People v. Thomas (1953) 41 Cal.2d 470, 480
(Thomas).)
Appellant contends the trial court erred by failing to
instruct the jury with the Thomas formulation of implied malice
“at a minimum”: that the defendant commit an act “with a high
probability that it will result in death.” This argument has been
squarely rejected by our Supreme Court, which has consistently
upheld the formulation reflected in CALCRIM No. 520 and given
here. For example, in Nieto Benitez, supra, 4 Cal.4th at p. 111,
the court rejected the argument that the standard implied malice

13
instruction was faulty because it did not state “a requirement
that [the] defendant commit the act with a high probability that
death will result.” The Nieto Benitez court confirmed that the
instruction stated an “equivalent” standard by requiring that the
defendant commit “an act whose ‘natural consequences’ are
dangerous to life.” (Ibid.; see also People v. Dellinger (1989) 49
Cal.3d 1212, 1219 [the two definitions of implied malice state
“one and the same standard”]; Watson, supra, 30 Cal.3d at p.
300.)
We are bound to follow these Supreme Court decisions
upholding the use of CALCRIM No. 520. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject
appellant’s argument that the high court’s conclusion that the
two standards are one and the same “does violence to the
meaning of ordinary definitions of words.” The trial court’s
instruction here was consistent with the controlling authorities;
thus, we find no error in its usage.
B. Unanimity instruction
Appellant contends that the trial court erred in failing to
give a unanimity instruction to the jury. Specifically, he claims
that because the evidence established “two separate and distinct
acts of driving under the influence”—first, appellant’s driving
from his home and causing the accident, and second, his driving
away from the accident, refusing to stop, and failing to render
aid—the jury could have found him guilty of murder based on
either act, and may not have unanimously agreed as to one of
them. We conclude no unanimity instruction was required.
A jury verdict must be unanimous in a criminal case.
(People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, “[w]hen an
accusatory pleading charges the defendant with a single criminal

14
act, and the evidence presented at trial tends to show more than
one such unlawful act, either the prosecution must elect the
specific act relied upon to prove the charge to the jury, or the
court must instruct the jury that it must unanimously agree that
the defendant committed the same specific criminal act.” (People
v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity
requirement “‘is intended to eliminate the danger that the
defendant will be convicted even though there is no single offense
which all the jurors agree the defendant committed.’ [Citation.]”
(People v. Russo, supra, 25 Cal.4th at p. 1132.) Where required, a
unanimity instruction must be given sua sponte. (People v.
Dieguez (2001) 89 Cal.App.4th 266, 274–275.)
As we discuss further in section III.C. post, there was
insufficient evidence in the record from which the jury could have
found appellant guilty of second degree murder based on his post-
accident conduct alone. (See People v. Burns (1987) 196
Cal.App.3d 1440, 1458 [“‘If under the evidence presented such
disagreement is not reasonably possible, the instruction is
unnecessary.’”].) Neither party suggested otherwise during trial.
Moreover, appellant cites no authority supporting his contention
that his flight after the collision and failure to assist the victim
could meet the elements for murder. His citations to cases
involving unanimity instructions for other crimes are inapposite.
(See People v. Crawford (1982) 131 Cal.App.3d 591 [possession of
multiple firearms]; People v. Scofield (1928) 203 Cal. 703, 709-710
[five different ways to violate hit and run statute]; People v.
McNeill (1980) 112 Cal.App.3d 330, 335 [four similar acts of
assault on different victims].)
Thus, because it was not reasonably possible that the jury
disagreed as to what conduct supported a finding of murder, no

15
unanimity instruction was necessary. (See, e.g., People v. Brown
(1991) 234 Cal.App.3d 918, 935 [“a unanimity instruction is
unnecessary ‘unless there is evidence based on which reasonable
jurors could disagree as to which act the defendant committed’
[citation]”].)
C. Lesser included offenses
Appellant requested jury instructions on the following
lesser included offenses to murder: vehicular manslaughter
(§ 192, subd. (c)), vehicular manslaughter while intoxicated
(§ 191.5, subd. (b)), and gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a).) The prosecution objected and the
trial court denied the request, finding that those crimes were not
lesser included offenses as they did not share all the elements of
second degree murder; thus, the court had no authority to give
them without the prosecutor’s consent. Appellant contends this
was error. We disagree.
Generally, when a defendant is charged with a crime, the
trial court must instruct the jury on any lesser included offenses
that are supported by the evidence. (People v. Breverman (1998)
19 Cal.4th 142, 154.) “Under California law, a lesser offense is
necessarily included in a greater offense if either the statutory
elements of the greater offense, or the facts actually alleged in
the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also
committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108,
117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.)
Conversely, “California law does not permit a court to instruct on
an uncharged lesser-related crime unless agreed to by the
prosecution.” (People v. Valentine (2006) 143 Cal.App.4th 1383,

16
1387 (emphasis added), citing People v. Birks, supra, 19 Cal.4th
at p. 136.)
In a second-degree murder charge, “Malice is implied when
an unlawful killing results from a willful act, the natural and
probable consequences of which are dangerous to human life,
performed with conscious disregard for that danger.” (People v.
Elmore (2014) 59 Cal.4th 121, 133.) In contrast, manslaughter is
“the unlawful killing of a human being without malice.” (§ 192,
subd. (b).) Vehicular manslaughter is a specific type of
manslaughter, involving “driving a vehicle in the commission of
an unlawful act, not amounting to a felony [and with/without]
gross negligence; or driving a vehicle in the commission of a
lawful act which might produce death, in an unlawful manner,
[and with/without] gross negligence.” (§ 192, subd. (c).) Gross
vehicular manslaughter while intoxicated is “the unlawful killing
of a human being without malice . . . in the driving of a vehicle,
where the driving was in violation of [DUI laws], and the killing
was either the proximate result of the commission of an unlawful
act, not amounting to a felony, and with gross negligence, or the
proximate result of the commission of a lawful act that might
produce death, in an unlawful manner, and with gross
negligence.” (§ 191.5, subd. (a).) Vehicular manslaughter while
intoxicated is the same act, without gross negligence. (§ 191.5,
subd. (b).)
Numerous courts have rejected the argument raised by
appellant here, that vehicular manslaughter, vehicular
manslaughter while intoxicated, and gross vehicular
manslaughter while intoxicated are lesser included offenses to
second degree murder. In People v. Sanchez (2001) 24 Cal.4th
983, 990, overruled on another point in People v. Reed (2006) 38

17
Cal.4th 1224, 1228-1229, the Supreme Court considered whether
“the settled practice of treating manslaughter as an offense
necessarily included within murder should be extended” to
vehicular manslaughter crimes. The defendant was convicted of
murder and gross vehicular manslaughter while intoxicated; he
argued that the vehicular manslaughter charge was necessarily
included within the murder charge, and he could not be convicted
of both. (Id. at p. 990.) Comparing the elements of the charges,
the Supreme Court found that the “statutory elements of murder
do not include all the elements of the lesser offense. Gross
vehicular manslaughter while intoxicated requires proof of
elements that need not be proved when the charge is murder,
namely, use of a vehicle and intoxication.” (Id. at p. 989.) Since a
second-degree (implied malice) murder conviction does not
necessarily require proof of either of those two elements, the
court concluded that the lesser crime was not necessarily
included within the greater. (Id. at pp. 992-993; see also People v.
Wolfe (2018) 20 Cal.App.5th 673, 685–686 [no error in trial
court’s refusal to instruct on involuntary and/or gross vehicular
manslaughter as neither was a lesser included offense and
prosecution had not agreed to instructions on lesser related
offenses].)
Appellant acknowledges that these vehicular manslaughter
crimes are not lesser included offenses to murder based on a
comparison of their elements (the “elements” test). However, he
urges us to apply the “accusatory pleading” test, under which the
court looks to whether “‘the charging allegations of the
accusatory pleading include language describing the offense in
such a way that if committed as specified [some] lesser offense is
necessarily committed.’” (People v. Montoya (2004) 33 Cal.4th

18
1031, 1035 (Montoya).) He further argues we may look beyond
the pleading itself, to evidence adduced at the preliminary
hearing, which “establishes all three types of vehicular
manslaughter.” A similar argument was rejected, however, by
the court in Montoya, which considered “only the pleading for the
greater offense.” (Id. at p. 1036.)
Notably, the Montoya court disapproved a contrary holding
in People v. Rush (1993) 16 Cal.App.4th 20. (Montoya, supra, 33
Cal.4th at p. 1036, fn. 4.) In People v. Rush, the information
alleged one count of robbery and one count of grand theft of a
motor vehicle, both on the same date and involving the same
victim. (Rush, supra, at p. 27.) The court noted that “[t]he
pleading contained no further recitation of a connection between
the offenses; however, the evidence at the preliminary hearing
and at trial unequivocally established that the automobile was
part of the loot stolen in the robbery.” (Ibid.) As such, the court
in Rush concluded that the pleading for the greater offense
included the requisite allegations for the lesser offense. (Ibid.)
Here, appellant advances the same argument as that made
in Rush and disapproved by Montoya. The information here
alleged in count one that on or about October 13, 2015, appellant
murdered the victim with malice aforethought; in count two, it
alleged that on the same date, appellant committed hit and run
driving resulting in death or serious injury to an unnamed
person. The pleading contains no further information connecting
the two crimes. As such, appellant necessarily argues that we
must also look to the preliminary hearing transcript. We decline
to do so under Montoya and its progeny. “Consistent with the
primary function of the accusatory pleading test—to determine
whether a defendant is entitled to instruction on a lesser

19
uncharged offense—we consider only the pleading for the greater
offense.” (Montoya, supra, 33 Cal.4th at p. 1036; see also People
v. Smith (2013) 57 Cal.4th 232, 244 [court “need only examine the
accusatory pleading”]; People v. Chaney (2005) 131 Cal.App.4th
253, 257 [“‘to determine whether a defendant is entitled to
instruction on a lesser uncharged offense—we consider only the
pleading for the greater offense’”].) Appellant’s reliance on People
v. Ortega (2015) 240 Cal.App.4th 956, 968, which looked beyond
the accusatory pleading, is therefore inapposite. (See People v.
Macias (2018) 26 Cal.App.5th 957, 964 (rejecting Ortega’s
“‘expanded accusatory pleading test’” as contrary to Montoya).)
Appellant next argues that, even if the uncharged crimes
were lesser related rather than lesser included offenses, the trial
court nevertheless erred in refusing to instruct on the elements of
those offenses. He claims such instructions were necessary to
allow the jury to compare the elements of the crimes to
“determine whether the prosecution only proved some form of
vehicular manslaughter instead of implied malice murder.”
In essence, appellant contends that he has a right to have
the jury instructed on the elements of uncharged crimes in order
to urge the jury that he is not guilty of the charged offense but
that he is guilty of something else. An accused is not “entitled to
instructions on offenses for which he is not charged in order to
urge the jury that he could have been convicted of something
other than what is alleged.” (People v. Valentine, supra, 143
Cal.App.4th at p. 1387.) Unsurprisingly, appellant cites no
authority to support this proposition. Moreover, we note that
while the court refused to instruct the jury on the elements of
three uncharged lesser related offenses, it did allow defense
counsel to argue about lesser charges that could have been

20
brought. Defense counsel did so, arguing that there were “a
myriad” of other crimes appellant could have been charged with,
including manslaughter and gross vehicular manslaughter while
intoxicated. As to each, he argued that appellant “did it; he is not
charged with it.” In sum, we conclude appellant has failed to
demonstrate error as to the trial court’s refusal to instruct the
jury on the uncharged vehicular manslaughter offenses.
III. Defense Counsel’s Concession of Hit and Run
During his opening statement and closing argument,
defense counsel conceded appellant’s guilt as to the second count
of felony hit and run, focusing instead on the murder count.
Appellant argues that his counsel’s concession was tantamount to
a guilty plea on that count. Further, because the record is silent
as to whether appellant knowingly waived his right to trial on the
hit and run, he contends the absence of a valid waiver requires
reversal. He asserts that this error infected his murder
conviction as well. We agree with appellant as to the hit and run
conviction, and reverse his conviction on that count. But we find
no error as to the murder conviction.
A. Factual background
Defense counsel’s opening statement included an
unequivocal concession on the hit and run count. He stated that
appellant “caused the accident. No dispute. And then he drove
away.” A few moments later, he conceded, “As to the hit and run,
he’s guilty of it; I’ll say that again at the end. There are no
games being played here. . . . But he’s not guilty of murder.” The
remainder of the defense opening statement focused on the
murder charge.
Similarly, in closing argument, defense counsel focused
solely on the murder charge, stating that as to the hit and run

21
charge, “I’ve never disputed it. He’s guilty of it; he should be
punished for it.” In her closing, the prosecutor noted that she
would not “touch on the second count, the hit and run; I think
that’s very obvious that he is guilty of that count.”
B. Effect on hit and run conviction
1. Legal framework
“When a criminal defendant enters a guilty plea, the trial
court is required to ensure that the plea is knowing and
voluntary. [Citation.] As a prophylactic measure, the court must
inform the defendant of three constitutional rights—the privilege
against compulsory self-incrimination, the right to trial by jury,
and the right to confront one’s accusers—and solicit a personal
waiver of each.” (People v. Cross (2015) 61 Cal.4th 164, 170.)
Accordingly, in the event of a guilty plea or other conduct
tantamount to a plea, “the record must demonstrate that the
defendant voluntarily and intelligently waived his constitutional
trial rights.” (People v. Farwell (2018) 5 Cal.5th 295, 300
(Farwell).)
Two recent cases, McCoy v. Louisiana (2018) __U.S.__, 138
S.Ct. 1500 (McCoy) and Farwell, supra, 5 Cal.5th 295 inform our
analysis here.6 In McCoy, defense counsel informed defendant of
his plan to concede guilt on the commission of three murders in
an attempt to avoid a death sentence for defendant. (McCoy,
supra, 138 S.Ct. at p. 1506.) The defendant insisted he did not
commit the murders and adamantly objected to any admission of

6Both opinions were published after the parties had
completed briefing in this appeal. We granted appellant’s
request to allow the parties to submit supplemental letter briefs
addressing McCoy. We also requested and received supplemental
briefing addressing Farwell.

22
guilt. (Ibid.) During his opening statement and closing
argument, over defendant’s objection, defense counsel told the
jury the evidence was “unambiguous,” that defendant “committed
three murders.” (Id. at p 1507.)
The Supreme Court concluded that “counsel may not admit
her client’s guilt of a charged crime over the client’s intransigent
objection to that admission.” (McCoy, supra, 138 S. Ct. at p.
1510.) As the McCoy court noted, “some decisions . . . are
reserved for the client—notably, whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo an
appeal.” (Id. at 1508.) Further, the trial court’s error in allowing
defense counsel to proceed was “structural”; “when present, such
an error is not subject to harmless-error review.” (Id. at p. 1511.)
The court also distinguished Florida v. Nixon (2004) 543
U.S. 175, 186 (Nixon), in which defense counsel several times
explained to the defendant a proposed concession strategy, but
the defendant was unresponsive. The Nixon court held that
“when counsel confers with the defendant and the defendant
remains silent, neither approving nor protesting counsel’s
proposed concession strategy, ‘[no] blanket rule demand[s] the
defendant’s explicit consent’ to implementation of that strategy.”
(McCoy, supra, 138 S.Ct. at p. 1505, quoting Nixon, supra, 543
U.S. at p. 192.)
The California Supreme Court addressed a related issue in
Farwell, supra, 5 Cal.5th 295. There, the defendant was charged
with gross vehicular manslaughter and misdemeanor driving
with a suspended license. (Id. at p. 298.) During trial, the
parties entered into a stipulation admitting all the elements of
the misdemeanor charge; the court later instructed the jury that
it must accept the stipulated facts as true. (Id. at pp. 298-299.)

23
The court did not advise the defendant “of the constitutional
rights implicated by a guilty plea or the stipulation. Nor did it
solicit a personal waiver of those rights.” (Id. at p. 299.) The
Supreme Court first found that a “stipulation that admits all of
the elements of a charged crime necessary for a conviction is
tantamount to a guilty plea.” (Ibid.) Farwell’s “stipulation
conclusively established the stipulated facts as true and
completely relieved the prosecution of its burden of proof on count
2. While the jury was still required to return a verdict on that
count, its limited function did not amount to a jury trial in the
constitutional sense.” (Id. at p. 300.) “Accordingly, the record
must demonstrate that the defendant voluntarily and
intelligently waived his constitutional trial rights.” (Ibid.)
The court next turned to the lack of express advisements
and waivers in the record. It examined the test set forth in
People v. Howard (1992) 1 Cal.4th 1132 (Howard), which held
that a plea is valid notwithstanding the lack of express
advisements and waivers “if the record affirmatively shows that
it is voluntary and intelligent under the totality of the
circumstances.” (Id. at p. 1175; see also Farwell, supra, 5 Cal.5th
at p. 301.) The Farwell court concluded that this “totality of the
circumstances” test applied “in all circumstances where the court
fails, either partially or completely, to advise and take waivers of
the defendant’s trial rights before accepting a guilty plea.” (Id. at
p. 303.) Applying that test, the court found there was “no
affirmative evidence that Farwell understood his stipulation
would conclusively establish all of the elements of the
misdemeanor crime and make the guilty verdict a foregone
conclusion.” (Id. at pp. 307–308.)

24
 2. Analysis
The facts of this case place it somewhere between the
circumstances of McCoy and Farwell. As in McCoy, defense
counsel conceded during argument that appellant committed the
hit and run. This concession was tantamount to a guilty plea, as
it admitted “all of the elements of a charged crime necessary for a
conviction” and “relieved the prosecution of its burden of proof”
on that count. (Farwell, supra, 5 Cal.5th at pp. 299-300; see also
McCoy, supra, 138 S.Ct. 1500, 1508.) As such, defense counsel’s
complete concession of guilt on the hit and run count was
permissible only if based on a knowing and informed waiver by
appellant of his right to trial on that count. (See McCoy, supra,
138 S.Ct. 1500, 1508 [“Just as a defendant may steadfastly refuse
to plead guilty in the face of overwhelming evidence against her,
or reject the assistance of legal counsel despite the defendant’s
own inexperience and lack of professional qualifications, so may
she insist on maintaining her innocence. . . . These are not
strategic choices about how best to achieve a client’s objectives;
they are choices about what the client’s objectives in fact are.”].)
Unlike the facts of McCoy, there is no evidence in the
record that appellant objected to defense counsel’s strategy. But
there is also no evidence in the record that appellant was
informed of counsel’s decision to concede guilt on the hit and run
count or, crucially, what rights he would be giving up as a result.
As such, to avoid error, the record must affirmatively show that
appellant’s waiver was voluntary and intelligent under the
totality of the circumstances. (Farwell, supra, 5 Cal.5th at p.
300; Howard, supra, 1 Cal.4th at p. 1180.) Moreover, as the
Farwell court noted, silent record cases “face their own practical
hurdle. The failure to advise a defendant of any trial rights will

25
make it much harder to demonstrate a plea was properly
accepted.” (Farwell, supra, 5 Cal.5th at p. 306.) Further, “[t]he
absence of express advisements is particularly troublesome” in
the context of a stipulation or concession that is tantamount to a
guilty plea. (Ibid.)
As in Farwell, we find that the record fails to affirmatively
show that appellant understood his counsel’s concession
“effectively extinguished his trial rights” as to the hit and run
charge. (Farwell, supra, 5 Cal.5th at p. 306.) Although appellant
was advised of his trial rights at the time of his prior guilty plea
to the DUI charge in 2013, there is no indication in the record
that appellant understood he was waiving those same rights by
virtue of his counsel’s concession during argument in this case.
(See id. at pp. 306-307.)
We do not doubt, as respondent claims, that defense
counsel likely made the concession as a strategic decision, given
the largely undisputed evidence as to the hit and run charge and
the seriousness of the murder charge. However, with the
guidance of McCoy and Farwell, we recognize that such a
previously acceptable tactical decision cannot override appellant’s
constitutional rights and the protections in place to ensure a
knowing and voluntary waiver of those rights. Therefore, we
reverse the conviction on the hit and run charge.7
C. Effect on murder conviction
Appellant also argues that his counsel’s concession of guilt
as to the hit and run charge requires reversal of the murder

Appellant’s argument that the imposition of consecutive
7

sentences on the two counts violated section 654 is therefore
moot.

26
conviction “because the concession could be used by the jury to
find, as a matter of law, implied malice.” We disagree.
As an initial matter, as discussed herein, defense counsel’s
concession would be considered tantamount to a guilty plea only
where it admitted all of the elements of the charged crime.
(Farwell, supra, 5 Cal.5th at pp. 299-300; see also McCoy, supra,
138 S.Ct. 1500, 1508.) Appellant fails to demonstrate that this
was the case for the murder charge; instead, he argues that the
concession could have relieved the prosecution of its burden to
prove the element of implied malice. Rather than conceding,
defense counsel expressly argued to the jury that defendant was
not guilty of murder and did not possess the requisite mental
state.
Further, we are not persuaded by appellant’s contention
that the jury could have found implied malice required for the
murder charge based on his post-accident conduct alone. As the
jury was instructed, a hit and run in violation of Vehicle Code
section 20001, subdivision (b)(2) requires proof of the following
elements: (1) the defendant was involved in a vehicle accident
while driving; (2) the accident caused the death of someone else;
(3) the defendant “knew that he had been involved in an accident
that injured another person or knew from the nature of the
accident that it was probable that another person had been
injured”; and (4) the defendant willfully failed to perform one or
more enumerated duties, including immediately stopping at the
scene of the accident, providing reasonable assistance to any
injured person, providing his name and address to the other
driver, and notifying police or highway patrol of the accident
“without unnecessary delay.” (Veh. Code §§ 20001, 20003,
20004.) As such, the hit and run charge focused entirely on the

27
fact of the accident and appellant’s conduct afterward. Indeed, a
concession as to the hit and run charge does not require an
admission that appellant caused the accident. (See People v.
Martinez (2017) 2 Cal.5th 1093, 1103 [“a defendant who flees the
scene of an injury accident has committed a crime even if the
accident was solely the result of the victim’s own negligence”].)
As a result, appellant’s argument depends on his theory
that the jury could have based a finding of implied malice on his
post-accident conduct alone. Appellant cites no authority in
support of this proposition. His citation to People v. Cravens
(2012) 53 Cal.4th 500 (Cravens) is inapposite. In Cravens, the
court found substantial evidence to support a second-degree
murder conviction for a defendant who delivered a deadly sucker
punch at the end of a group fight. (Id. at pp. 508-511.) In
upholding the jury’s finding of implied malice, the court relied on
the circumstances of the attack, as well as defendant’s conduct
both before and after the fight, noting that his post-accident
callousness “bolstered the finding of implied malice.” (Id. at p.
511.)
Similarly, here, the prosecution argued at length regarding
appellant’s pre-accident knowledge of the dangers of drinking
and driving, his decision to drive while impaired on the day of the
accident, and his decision to turn in front of the motorcyclist,
concluding that the evidence established that he acted with
implied malice at the time of the accident. For example, she
argued that the victim’s death occurred because appellant “made
decisions that night, knowing that they would result in hurting
or killing another person, and said, ‘I’ll take the risk.’” She also
argued that appellant’s conduct in leaving the scene bolstered the
showing of his disregard for human life. She did not suggest,

28
however, that the jury could find implied malice based solely on
appellant’s post-accident conduct. To the contrary, in her
rebuttal argument, she stated that the test for implied malice
was “what was the defendant’s state of mind before he committed
that act?”
Moreover, appellant’s counsel argued several times that his
post-accident conduct was irrelevant to the malice inquiry. He
told the jury that “the question isn’t what happened after the
accident; it’s malice aforethought. . . . The question is what was
going on in his head before the accident.”
We also reject appellant’s argument that “nothing in the
jury instructions prohibited the jury from finding implied malice
based solely on defendant’s post-accident conduct and mental
state.” The jury was instructed with CALCRIM No. 520,
providing that the prosecution must prove that “when the
defendant acted, he had a state of mind called malice
aforethought,” and that implied malice required a finding that “at
the time he acted, he knew his act was dangerous to human life.”
Further, at appellant’s request and over the prosecutor’s
objection, the court modified the instruction to include the
following factors that the jury could consider to determine
whether appellant acted with implied malice: “(1) A blood alcohol
level above the legal limit of .08 percent; (2) Whether there is
evidence of pre-drinking intent to drive; (3) Defendant’s
knowledge of the hazards of driving while intoxicated or under
the influence of alcohol; (4) Highly dangerous driving.” Notably,
these factors focus on evidence prior to or at the time of the

29
accident. We also note that the jury was instructed with
CALCRIM No. 372, which provides that evidence of a defendant’s
flight after the crime “may show that he was aware of his guilt,”
but “cannot prove guilt by itself.” As such, the record does not
support appellant’s assertion that the jury could have based its
second degree murder verdict on his post-accident conduct alone.
IV. Cumulative Error
Appellant also contends that the cumulative effect of the
errors he has identified requires reversal of the murder
conviction. Because we found no errors with respect to the
murder conviction, we reject this claim.
DISPOSITION
The judgment of conviction on count one is affirmed. The
conviction on count two is reversed and the matter is remanded
for further proceedings consistent with this opinion.
CERTIFIED FOR PARTIAL PUBLICATION

COLLINS, J.

We concur:

MANELLA, P. J.

MICON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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