People v. Alvarado CA2/8

Filed 11/4/20 P. v. Alvarado CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B297688

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA088215)
v.

ESTUARDO ALVARADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County. David W. Stuart, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
 Estuardo Alvarado appeals from a judgment which
sentences him to state prison for second degree murder, gross
vehicular manslaughter, driving under the influence (DUI), and
hit and run driving. We affirm the judgment.
FACTS
On February 19, 2017, at approximately 2:40 p.m.,
Alvarado rear ended Shirley Greenberg’s Honda Civic with his
Dodge Durango. The collision caused the trunk of the Civic to be
pushed into the frame of the rear window, and the Civic was
“totaled.” Mildred Friedmann and Sandra Page were passengers
in Greenberg’s car. Alvarado and Greenberg pulled over and they
spoke briefly about exchanging information. When Greenberg
turned to her car to retrieve her insurance information, Alvarado
fled in his Durango.
Driving in excess of 60 miles per hour in a 40-mile-per-hour
zone, Alvarado ran a red light and hit the side of Sandra Duran’s
Toyota Camry. He came to a stop only when he went over a
median divider and hit a parked car. The second collision
occurred minutes after the first. Duran’s son, Christian Galvan,
and his girlfriend, Stephanie Garcia, were passengers in the
Camry.
Two officers from the Los Angeles Police Department were
on foot patrol nearby and heard the crash. They pulled Galvan
and Garcia from Duran’s car but could not open the driver-side
door to retrieve Duran, who was not responsive and bleeding
from her nose. Officers also pulled Alvarado, who was
unconscious, from the smoking Durango.
Duran died at the scene of the collision from multiple blunt
force injuries. Garcia was hospitalized for seven to 10 days for
back pain and internal bleeding in her left kidney. Alvarado was

2
also taken to the hospital, where he did not cooperate and gave a
false name to the officers. Officers observed he had red watery
eyes, a blank stare, and smelled of alcohol. Blood samples were
taken from Alvarado at 4:05 p.m. and 8:42 p.m. The first blood
sample revealed a blood alcohol content of 0.31 percent and the
second sample showed a blood alcohol content of 0.18 percent,
both above the legal limit. After his arrest, Alvarado admitted in
recorded jailhouse calls that he was intoxicated and his girlfriend
had warned him repeatedly about the consequences of driving
drunk.
Alvarado was charged with second degree murder (Pen.
Code, § 187, subd. (a); count 1), gross vehicular manslaughter
while intoxicated (Pen. Code, § 191.5, subd. (a); count 2), driving
under the influence causing injury (Veh. Code, § 23153, subd. (a);
count 3), driving with over a 0.08 percent blood alcohol content
causing injury (Veh. Code, § 23153, subd. (b); count 4), and hit
and run driving resulting in injury (Veh. Code, § 20001, subd.
(b)(1); count 5). As to count 2, it was alleged Alvarado had three
prior convictions for driving with over a 0.08 percent blood
alcohol content. As to counts 3 and 4, it was further alleged
Alvarado personally inflicted great bodily injury. (Pen. Code,
§ 12022.7, subd. (a).)
A jury found Alvarado guilty of counts 2 through 5 but were
unable to reach a verdict on count 1. The trial court declared a
mistrial as to that count and allowed the People to retry it. In
the second trial, the jury found Alvarado guilty of second degree
murder as alleged in count 1. In a bifurcated trial, the court
found true the allegation that Alvarado suffered three prior
convictions for driving with over a 0.08 percent blood alcohol
content.

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 Alvarado was sentenced to an indeterminate term of 15
years to life plus a determinate term of six years eight months as
follows: as to count 1, 15 years to life; as to count 3, a consecutive
term of three years plus three years for the great bodily injury
enhancement; and as to count 5, a consecutive term of eight
months. The sentences for count 2 and count 4 were stayed
pursuant to Penal Code section 654.
Alvarado appealed.
DISCUSSION
Alvarado contends his conviction for gross vehicular
manslaughter in the first trial precluded the second prosecution
for murder under double jeopardy principles and Penal Code
section 1023. He also contends there was insufficient evidence to
support a conviction for hit and run resulting in injury because
there was no evidence of an injury resulting from his collision
with Greenberg’s car. Finally, he argues the trial court abused
its discretion to admit video of the aftermath of Alvarado’s
collision with Duran taken from a responding officer’s body
camera. None of these arguments require reversal.
I. Neither Double Jeopardy Principles Nor Penal Code
Section 1023 Precluded The Second Trial
Alvarado contends his second trial was precluded under
double jeopardy principles and Penal Code section 1023.1

1 Alvarado relied on People v. Rivera (May 30, 1995,
H012473) [nonpub. opn.], which appeared to be dispositive of the
issue. However, Rivera was depublished when the California
Supreme Court granted review on August 31, 1995 in S047569.
It remained unpublished after the Supreme Court dismissed its
grant of review and remanded the matter to the appellate court
on July 11, 1996. As a result, it may not be cited. (Cal. Rules of

4
A defendant “may not twice be put in jeopardy for the same
offense.” (Cal. Const., art. I, § 15; U.S. Const., 5th Amend.)
The “underlying idea” of the double jeopardy rule “is that the
State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty.” (Green v. United States
(1957) 355 U.S. 184, 187–188.)
Penal Code section 1023 similarly provides: “When the
defendant is convicted or acquitted or has been once placed in
jeopardy upon an accusatory pleading, the conviction, acquittal,
or jeopardy is a bar to another prosecution for the offense charged
in such accusatory pleading, or for an attempt to commit the
same, or for an offense necessarily included therein, of which he
might have been convicted under that accusatory pleading.”
We follow the Supreme Court’s analysis in People v. Hicks
(2017) 4 Cal.5th 203 (Hicks) to reject Alvarado’s argument. Hicks
presents identical facts to this case. There, the defendant was
retried for second degree murder after a previous jury had failed
to reach a verdict on that charge but convicted him of gross
vehicular manslaughter while intoxicated, along with other
offenses. (Id. at p. 205.) The Hicks court decided whether a
subsequent jury should be informed of a defendant’s specific

Court, rule 8.1115(a); Cal. Style Manual (4th ed. 2000) § 1:26,
pp. 26–27.) Alvarado’s appellate counsel was unaware of Rivera’s
unpublished status due to an error on Lexis Nexis, which has
been corrected.

5
convictions resulting from a previous trial when the first jury
fails to reach a verdict. (Id. at p. 205.) In holding that a trial
court errs if it informs the new jury of prior specific convictions
but providing a different instruction to be given, the Hicks court
observed:
“In this case, if the first jury had convicted defendant of an
offense that was necessarily included within the charge of
murder, instead of a lesser related offense to murder, retrial of
the murder charge would have been barred. Although a jury’s
inability to reach a verdict is a well-established exception to the
double jeopardy bar [citation], and although there is no implied
acquittal when a deadlocked jury convicts on a necessarily
included offense [citation], retrial of a greater offense after a
defendant has been convicted of a necessarily included offense
would be tantamount to trying the defendant on the necessarily
included offense twice, and a conviction on the greater offense
under such circumstances would be tantamount to convicting the
defendant on the necessarily included offense twice. Therefore,
we held in [People v.] Fields [(1996) 13 Cal.4th 289, 310–311] that
if a jury fails to reach a verdict on a charged offense but convicts
on a necessarily included offense, and if the conviction is recorded
by the court and the jury is discharged, retrial of the greater
offense is barred under Penal Code section 1023. [Citations.]
“Here, however, retrial of the murder charge was permitted
because the first jury, unable to agree as to the murder charge,
convicted defendant of lesser related offenses, but it did not
convict him of any necessarily included offenses. Of these lesser
related offenses, the one that was factually closest to the murder
charge was gross vehicular manslaughter while intoxicated, but
because defendant’s gross vehicular manslaughter conviction

6
required proof of elements that did not need to be proved to
convict defendant of murder, the retrial of the murder charge did
not constitute a second trial of the gross vehicular manslaughter
charge, and the conviction on the murder charge did not
constitute a second gross vehicular manslaughter conviction.”
(Hicks, supra, 4 Cal.5th at p. 209, fn. omitted.)
Alvarado acknowledges Hicks “implicitly comes down
against appellant’s position.” “ ‘[E]ven if properly characterized
as dictum, statements of the Supreme Court should be considered
persuasive.’ [Citation.] ‘[I]t does not follow that the dictum of a
court is always and at all times to be discarded. A correct
principle of law may be announced in a given case, although it
may not be necessary to there apply it . . . .’ [Citation.] Such
dictum, while not controlling authority, carries persuasive weight
and should be followed where it demonstrates a thorough
analysis of the issue or reflects compelling logic. [Citations.]”
(Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297;
Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1149.)
Whether the above observation from Hicks constitutes
dictum or something more, it reflects a thorough analysis of the
issue and compelling logic. We accordingly rely on Hicks to
conclude the second trial for murder did not violate double
jeopardy principles or Penal Code section 1023. Given Hicks was
published before Alvarado’s first trial, we reject his ineffective
assistance of counsel argument. Counsel is not ineffective for
failing to make a futile motion. (People v. Thompson (2010)
49 Cal.4th 79, 122.)

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II. Substantial Evidence Supports A Finding Of Injury
As To The Hit And Run Driving Conviction
Alvarado contends insufficient evidence supports the jury’s
conviction in count 5 for hit and run driving resulting in injury to
another person. (Veh. Code, § 20001, subd. (b)(1).) Count 5 was
charged in connection with Alvarado’s collision with Greenberg.
Substantial evidence supports a finding of injury to Greenberg’s
passenger.
“ ‘To determine whether sufficient evidence supports a jury
verdict, a reviewing court reviews the entire record in the light
most favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that
a reasonable jury could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Smith (2014) 60 Cal.4th
603, 617.) “ ‘ “On appeal, we . . . must presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] Although we must
ensure the evidence is reasonable, credible, and of solid value,
nonetheless 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 on which that determination depends. [Citation.] Thus,
if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.
[Citations.]” [Citation.]’ [Citation.]” (People v. White (2014)
230 Cal.App.4th 305, 315, fn. 13.)
Vehicle Code section 20001, subdivision (b)(1) requires the
driver of a vehicle involved in an accident resulting in injury to a
person other than himself to immediately stop the vehicle,
provide reasonable assistance, and supply identification

8
information to the other party or to police. To prove a violation of
Vehicle Code section 20001, subdivision (b)(1), the People must
prove, in relevant part, the accident caused injury to someone
besides the defendant, and the defendant had actual knowledge
of the other person’s injury or had sufficient facts of the accident
to impute constructive knowledge of injury on him. (People v.
Harbert (2009) 170 Cal.App.4th 42, 52; People v. Carter (1966)
243 Cal.App.2d 239, 241 (Carter).)
At trial, Greenberg testified she did not sustain any
injuries as a result of the collision. Her passenger Friedmann
testified she “got a little bit hurt” in the back of her neck “but it
went away the next day.” Sandra Page did not testify. Defense
counsel moved to dismiss count 5 after the prosecution’s case in
chief. The trial court denied the motion.
On appeal, Alvarado contends Friedmann’s neck pain does
not constitute an injury under Vehicle Code section 20001,
subdivision (b)(1) because it was minor and had gone away by the
following day. We find Friedmann’s testimony that her neck hurt
until the following day to be substantial evidence of an injury
under Vehicle Code section 20001, subdivision (b)(1).
In People v. Thoma (2007) 150 Cal.App.4th 1096, the court
examined the term “bodily injury” in connection with Vehicle
Code section 23153, subdivision (a), which prohibits driving
under the influence and proximately causing bodily injury. It
reasoned “ ‘ “[b]odily injury means just what it says—harm or
hurt to the body. Common sense requires more for conviction
than a ‘shaking up’ of a person in a car which is in an accident, or
fright, or a minor headache; it means very obviously a hurt to the
body.” ’ [Citation.] ‘Bodily injury’ does not mean substantial or
great bodily injury. [Citation.]” (Thoma, supra, at pp. 1099–

9
1100.) Friedmann’s testimony supports a finding she suffered
harm or hurt to her body. The pain in her neck, which lasted
until the next day, was more than a mere “shaking up,” fright, or
minor headache.
We are not persuaded to conclude otherwise by People v.
Abrego (1993) 21 Cal.App.4th 133, 137–138, which Alvarado cites
to argue minor pain does not amount to infliction of injury.
Abrego addressed whether a slap caused “ ‘corporal injury
resulting in a traumatic condition’ ” within the meaning of the
domestic violence statute in the Penal Code. (Id. at p. 138.) We
need not stray so far from the Vehicle Code to determine whether
an injury occurred here. We thus do not find Abrego applicable in
this case and instead rely on Thoma, as discussed above.
Alvarado further contends there was insufficient evidence
he had actual or constructive knowledge that any injury resulted
from the collision to trigger his duties under Vehicle Code section
20001. The circumstances of the collision show constructive
knowledge can reasonably be imputed to him because “the
seriousness of the collision would lead a reasonable person to
assume there must have been resulting injuries.” (Carter, supra,
243 Cal.App.2d at p. 241.) Greenberg testified Alvarado
“rammed” into her and her car was “totaled.” Indeed, the trunk
of the car was pushed into the frame of the rear window. This is
sufficient to impose constructive knowledge of injury on Alvarado,
especially when one of the passengers sat in the rear of the car.
We reject Alvarado’s contention that he could not have
known any injuries resulted from the collision because Greenberg
and her passenger appeared unhurt when they spoke briefly
before he fled; they only discussed exchanging information and
did not discuss whether anyone was injured. (People v. Holford

10
(1965) 63 Cal.2d 74, 80 [“driver who leaves the scene of the
accident seldom possesses actual knowledge of injury; by leaving
the scene he forecloses any opportunity to acquire such actual
knowledge.”].)
This case is unlike Carter, supra, 243 Cal.App.2d 239, upon
which Alvarado relies. In Carter, the court found no basis to
impute constructive knowledge of injury on the defendant
because the defendant’s car only “slightly damaged” the other
car’s bumper and the other car’s driver advised him no one was
hurt. (Id. at p. 240.) Here, there was extensive damage to
Greenberg’s car and neither Greenberg nor her passengers
informed Alvarado they were not hurt.
III. The Trial Court Did Not Abuse Its Discretion To
Admit The Body Camera Video
At the second trial, the jury was shown a portion of video
taken from the body camera of Officer Taylor McLaws showing
the aftermath of Alvarado’s collision with Duran. Alvarado
contends the trial court abused its discretion to admit the video
over his counsel’s objections. According to Alvarado, the video
was irrelevant and unduly prejudicial. We conclude the trial
court did not abuse its discretion to admit the video.
A. Standard of Review
Under Evidence Code section 351, all relevant evidence is
admissible unless prohibited by statute. Relevant evidence is
defined in Evidence Code section 210 as evidence “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (People v.
Young (2019) 7 Cal.5th 905, 930–931.)
However, under Evidence Code section 352, the trial court
retains the discretion to exclude relevant evidence if “its

11
probative value is substantially outweighed by the probability
that its admission will” either “necessitate undue consumption of
time” or “create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code,
§ 352; People v. Scheid (1997) 16 Cal.4th 1, 13.) “ ‘ “Undue
prejudice” refers not to evidence that proves guilt, but to evidence
that prompts an emotional reaction against the defendant and
tends to cause the trier of fact to decide the case on an improper
basis . . . .’ ” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276–
1277.)
We review for an abuse of discretion the trial court’s
admission of evidence as relevant and its ruling under Evidence
Code section 352. (People v. Rogers (2013) 57 Cal.4th 296, 326
(Rogers); People v. Wallace (2008) 44 Cal.4th 1032, 1057.) Under
that standard, the trial court’s ruling will not be disturbed unless
the court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice. (Rogers, supra, at p. 326.)
B. Proceedings Below
At the second trial, the People sought to admit a video
taken from the body camera of Officer McLaws. Officer McLaws
arrived at the scene within minutes of Alvarado’s collision with
Duran. The video, which is approximately 20 minutes long,
showed the aftermath of the collision, including Duran’s damaged
car. The segment that was played for the jury was five minutes
and 45 seconds long. It showed Officer McLaws briefly
interacting with Duran, Alvarado, and other witnesses. It also
showed Officer McLaws helping another officer remove Alvarado
from his car. The video was not shown to the first jury.

12
 Defense counsel argued the video was irrelevant to the sole
charge of second degree murder, contained inadmissible hearsay,
and was unduly prejudicial under Evidence Code section 352.
The trial court overruled the objections. It explained, “I looked at
the video, watched it a couple times, and so the relevance of the
video is two things I see: to show the defendant after the
accident, what he looked like, his state of consciousness, if he said
anything; and also for the jury to get a sense of the kind of forces
that were involved in this accident . . . a jury could infer what
kind of speed the defendant was traveling at the time of the
accident, which would help them decide whether the defendant
consciously disregarded knowledge of an activity that was
dangerous to human life. [¶] It is a little hard to watch, but
nothing over the top. It’s not too gruesome or gratuitous, so I
don’t have a problem with the first part of the video being
played . . . .” The trial court excluded most of the video because
“it’s just officers milling around speculating, relating hearsay
statements from witnesses off camera, off screen for another 15
minutes, so I don’t think that that’s appropriate for the jury to
listen to the officers’ opinions and speculations.”
C. Analysis
The trial court did not abuse its discretion to admit a
portion of the video at the retrial for second degree murder.
Second degree murder is the unlawful killing of a human being
with express or implied malice but without the additional
elements, such as willfulness, premeditation, and deliberation,
that would support a conviction of first degree murder. (See Pen.
Code, §§ 187, subd. (a), 188, 189.) Malice “is express when there
is manifested a deliberate intention to unlawfully take away the
life of a fellow creature.” (Pen. Code, § 188, subd. (a)(1).) “Malice

13
is implied when the killing is proximately caused by ‘ “an act, the
natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with
conscious disregard for life.” ’ [Citation.] In short, implied malice
requires a defendant’s awareness of engaging in conduct that
endangers the life of another—no more, and no less.” (People v.
Knoller (2007) 41 Cal.4th 139, 143.)
Here, the People proceeded on a theory of implied rather
than express malice. The defense theory at trial was that the
evidence demonstrated gross negligence and not implied malice.
Defense counsel argued at closing that Alvarado’s blood-alcohol
content demonstrated significant cognitive impairment.
Additionally, he was unconscious and unresponsive immediately
after the accident. Defense counsel argued these facts showed
Alvarado lacked the requisite awareness for second degree
murder.
Given the People’s burden to prove implied malice and
Alvarado’s defense, the trial court did not abuse its discretion to
admit the video because it was relevant to show Alvarado’s
mental state. The video was taken almost immediately after the
collision and showed Officer McLaws interacting briefly with
Alvarado while pulling him from the Durango. This allowed the
jury to judge Alvarado’s mental state immediately after the
collision.
The video also showed the damage to Duran’s car and the
injuries she suffered. We agree with the trial court that the jury
could infer the speed at which Alvarado was travelling at the
time of the collision from its view of the damage to the car and
Duran’s injuries. The jury could reasonably use this information

14
to conclude Alvarado acted with conscious disregard for life when
he sped away from one collision and failed to brake or slow down
for a red light shortly thereafter, causing another collision.
We reject Alvarado’s claim the video was not relevant
because there was no dispute about the speed of his car, the
cause of Duran’s death, or the nature of Duran’s injuries.
Alvarado contends these issues were shown by live witness
testimony and the video was therefore unnecessary to the
People’s case. While Alvarado did not present any evidence to
dispute these issues at trial, he also did not stipulate to them. It
remained the People’s burden to prove its case beyond a
reasonable doubt. (Estelle v. McGuire (1991) 502 U.S. 62, 69.)
“ ‘ “[P]rosecutors, it must be remembered, are not obliged to prove
their case with evidence solely from live witnesses; the jury is
entitled to see details of the victims’ bodies to determine if the
evidence supports the prosecution’s theory of the case.
[Citations.]” ’ ” (People v. Powell (2018) 6 Cal.5th 136, 164.) The
video was relevant as circumstantial evidence of Duran’s mental
state at the time of the accident.
Additionally, the trial court did not abuse its discretion to
admit the video over Alvarado’s objection under Evidence Code
section 352. The probative value of the video, discussed above,
was not substantially outweighed by its prejudicial effect. We are
not persuaded by Alvarado’s argument that the video likely
prompted an emotional reaction from the jury because it showed
Duran dying and thus was extremely inflammatory. The trial
court found it was “not too gruesome or gratuitous.” As our
Supreme Court has long noted, “ ‘ “ ‘murder is seldom pretty, and
pictures, testimony and physical evidence in such a case are

15
always unpleasant.’ ” ’ [Citation.]” (People v. Moon (2005)
37 Cal.4th 1, 35.)
Here, there is no question the video accurately depicted the
scene of the collision and Alvarado’s and Duran’s condition.
Moreover, the trial court limited the 20-minute video to five
minutes and 45 seconds, finding the remaining portion to contain
irrelevant and improper information for the jury to consider. As
the Supreme Court recognized in People v. Ramirez (2006)
39 Cal.4th 398, 454, “[t]he jury can, and must, be shielded from
depictions that sensationalize an alleged crime, or are
unnecessarily gruesome, but the jury cannot be shielded from an
accurate depiction of the charged crimes that does not
unnecessarily play upon the emotions of the jurors. The record
reflects that the experienced trial judge was well aware of his
duty to weigh the prejudicial effect of the photographs against
their probative value, and carefully did so.” Given the guidance
provided by Ramirez, we conclude the trial court did not abuse its
discretion to admit the video.2
In any case, the erroneous admission of evidence “does not
require reversal except where the error or errors caused a
miscarriage of justice.” (People v. Richardson (2008) 43 Cal.4th
959, 1001.) Here, we conclude that even if it was error to admit
the video into evidence, any error was harmless under both the

2 Alvarado also claims the admission of the video violated his
rights under the Fifth, Fourteenth, and Sixth Amendments.
Because we conclude the trial court did not abuse its discretion,
“there is thus no predicate error on which to base the
constitutional claims.” (People v. Roybal (1998) 19 Cal.4th 481,
506, fn. 2.)

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federal and state standards. (See Chapman v. California (1967)
386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836;
People v. Page (2008) 44 Cal.4th 1, 41–42 [absent violation of
federal constitutional rights, evidentiary error is measured under
Watson standard of prejudicial error].)
In Hicks, supra, 4 Cal.5th at page 216, the court applied
People v. Watson to find harmless the trial court’s instructional
error. The Hicks court determined the evidence was
overwhelming both as to the objective dangerousness of the
defendant’s behavior and as to a finding of implied malice.
It found “particularly significant that during the chase preceding
the fatal collision, defendant ignored both red lights and the
sirens of pursuing law enforcement officers, and he also nearly
hit several vehicles. Those are events that would tend to put a
person on notice that he or she is driving in a dangerous manner,
and there is no reason to conclude that they did not put
defendant on such notice.” (Id. at pp. 215–216.)
As in Hicks, the evidence was overwhelming as to the
objective dangerousness of Alvarado’s behavior and to prove his
implied malice. It is undisputed Alvarado was highly intoxicated
at the time he hit Greenberg’s car. Although he was aware he
was driving dangerously after the collision with Greenberg, he
chose to get back in his car to flee the scene. He drove over 60
miles per hour in a 40-mile-per-hour zone, ran a red light, and
rammed into Duran’s car. He continued on until he ran over the
median divider and hit a parked car.
The record also demonstrates Alvarado was aware of the
dangers of driving while intoxicated. The parties stipulated
Alvarado had three DUIs in 1997, 2001, and 2006 and had been
ordered to attend DUI classes as part of his sentence. He

17
admitted in jailhouse calls that he was intoxicated and his
girlfriend had warned him repeatedly about the consequences of
driving drunk. These facts clearly establish implied malice.
Thus, any error resulting from the admission of the video
into evidence was harmless. Hicks applied the standard under
People v. Watson, supra, 46 Cal.2d at page 836 to find harmless
error. Given these facts, though, we also find it is clear beyond a
reasonable doubt that any error in admitting the video into
evidence was harmless under Chapman v. California, supra,
386 U.S. at page 24.
DISPOSITION
The judgment is affirmed.

BIGELOW, P. J.

WE CONCUR:

STRATTON, J.

WILEY, J.

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