People v. Coleman CA6

Filed 12/30/20 P. v. Coleman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045801
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1365815)

v.

DANIEL DARNELL COLEMAN,

Defendant and Appellant.

Defendant Daniel Darnell Coleman sped away from police officers who were
attempting to conduct a traffic stop and crashed into another car, killing two people.
After a jury trial, Coleman was convicted of two counts of second degree murder (Pen.
Code, § 187),1 possession of a firearm by a felon (§ 29800, subd. (a)(1)), and reckless
driving while eluding a peace officer (Veh. Code, § 2800.2). He was sentenced to an
indeterminate term of 60 years to life and a consecutive determinate term of four years.
On appeal, Coleman argues that the trial court erroneously refused his request to
instruct the jury with a definition of implied malice that would have clarified the
language found in CALCRIM No. 520, the prosecutor committed misconduct by arguing
that his actions after the crash proved he acted with implied malice, and the restitution
fine and penalty assessments imposed in his case should be stayed pending a
determination of his ability to pay. We affirm the judgment.

1
Unspecified statutory references are to the Penal Code.
 BACKGROUND
1. The Information
On October 24, 2017, an amended information was filed charging Coleman with
two counts of murder (§ 187; counts 1 & 2), a count of possession of a firearm by a felon
(§ 29800, subd. (a)(1)), and a count of reckless driving while eluding a peace officer
(Veh. Code, § 2800.2, subd. (a)). The amended information also alleged that Coleman
had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
2. The Trial
a. The Car Crash
On September 2, 2013, California Highway Patrol Officer Matthew Barge was on
duty at approximately 3:17 a.m. He was driving north on Interstate 101, to the south of
Interstate 880, when he noticed that a Mercedes-Benz sedan was weaving and traveling
over the speed limit. Officer Barge followed the Mercedes as it exited toward the
Brokaw Road and North First Street offramp. After the Mercedes turned onto Brokaw
Road, Officer Barge attempted to initiate a traffic stop and turned on his overhead lights
and forward-facing red and blue lights. Officer Barge’s partner used the police car’s
public address system and instructed the Mercedes’s driver to pull over to the right side
of the road.
The Mercedes started to slow down, but it made a sudden left turn when the
upcoming traffic light turned green. The Mercedes then made a left onto First Street
from Brokaw Road, running a red light. Officer Barge decided not to pursue the car
because he was familiar with the area, which had restaurants and a casino, and he knew
there was a high level of pedestrian traffic in the vicinity. Officer Barge had already
witnessed the Mercedes have two near-miss collisions, and he did not believe that it was
appropriate to chase the car on city streets. Officer Barge estimated that the Mercedes
reached speeds of 75 miles per hour.

2
 At some point, Officer Barge saw a flash of light in the distance in the direction
where the Mercedes had headed. Officer Barge’s partner commented that he thought
there might have been a collision. The officers continued to drive down First Street and
arrived at the intersection of First Street and Skyport Drive. There, they saw that the
Mercedes had hit a Toyota Yaris. The driver of the Mercedes was not in the car. Officer
Barge saw that the traffic light at the intersection cycled to green after they arrived.
Officer Barge saw that two people were inside the Toyota. Both were
unresponsive. The Toyota had significant damage to both its driver’s side and passenger
side. It looked like the Mercedes had impacted the passenger side of the Toyota.
At trial, Officer Barge reviewed a video recording taken using his police car’s
video recorder. After reviewing the footage, Officer Barge testified that the Mercedes
made a number of traffic violations before the crash, including making turns on lanes that
were designated as straight lanes.
Saad Calhoun was driving on First Street and had just made a turn on Skyport
Drive at around 3:00 a.m. the morning of the collision. He heard a screech and a crunch
behind him. Calhoun stopped his car and looked behind him to see what had happened.
He saw that two cars, a Mercedes and a smaller car, had crashed into each other.
Calhoun gathered his thoughts and made a U-turn toward the accident so that he could
offer his assistance. He also called 911.
Ryan West, a firefighter and paramedic, responded to the scene of the crash. West
saw that the female passenger in the Toyota, Christina DeLeon Castro, had no pulse and
was not breathing. The female driver, Carmen Zavala, had a pulse but had insufficient
respirations. Paramedics extricated Zavala out of the car and assisted her with
ventilations. As they were loading Zavala into the ambulance, her pulse stopped, and
paramedics began CPR. Zavala was pronounced dead at approximately 4:00 a.m. at
Valley Medical Center. Castro was pronounced dead at the scene at approximately
3:40 a.m.
3
 Officers who arrived at the scene of the crash collected an airbag that had been
deployed by the Mercedes as evidence. Officers also collected blood droplets that were
found on the Mercedes’s driver’s side door.
Dr. Joseph O’Hara, a forensic pathologist, performed autopsies on Zavala and
Castro. Zavala sustained injuries that would have ben “quickly lethal,” and she would
have died within a matter of minutes. Castro’s injuries were similar in severity, and she
would have also died within a matter of minutes.
b. The Abandoned Gun
On September 3, 2013, Michael Gonzales was doing construction at the corner of
First Street and Skyport Drive. Shortly after he started work that morning at around 7:00
or 7:30 a.m., he saw a gun on the ground in the dirt. Gonzales picked up the gun with his
shirt, and he saw that the gun’s serial numbers were grinded or scratched off. Later that
day, San Jose Police Department Officer Janet Cusimano arrived at the construction
scene and took the gun into evidence.
c. Coleman’s Arrest
San Jose Police Department Officer Dan Ramirez testified that records reflected
that the Mercedes was registered to someone named Cami Farmer.
On September 20, 2013, San Jose Police Department Officer Bret Hatzenbuhler
conducted surveillance on Coleman and located him at a shopping mall in Union City.
Coleman was at the mall with his wife, who he identified as “Cami Farmer or Cami
Coleman.” Officer Hatzenbuhler approached Coleman on foot. Coleman appeared
nervous and was looking intensely at Officer Hatzenbuhler and at passing cars. Officer
Hatzenbuhler entered a nearby store and acted as if he were a customer. Shortly
thereafter, Coleman and his wife went into a car and drove to a nearby bank. Officer
Hatzenbuhler continued to observe Coleman, and he believed Coleman looked nervous.
After Coleman and his wife left the bank, officers arrested Coleman. Coleman vomited
after he was arrested.
4
 d. Forensic Evidence
San Jose Police Department Detective Michael O’Brien photographed Coleman
and took his DNA sample on the day he was arrested. Detective O’Brien noticed that
Coleman had a one-inch long scabbed-over cut on the back of his left hand.
A forensic analyst examined the DNA that was obtained from the Mercedes’s
airbag and a reddish-brown stain that was later found on the abandoned gun’s magazine.
Coleman was the source of DNA on both the airbag and the stain found on the gun.
e. The Accident Reconstruction
San Jose Police Department Officer Eric Dragoo testified as an expert in traffic
collision reconstruction. Officer Dragoo was assigned as the lead investigator in the fatal
collision and helped process the crime scene. He observed that the area where the
collision had occurred had a speed limit of 35 miles per hour, and the traffic signal lights
in the area were working properly. The main damage to the Toyota was on the passenger
side, which was crushed inward from the front door all the way to the rear. The
Mercedes’s front end was damaged, and its hood was buckled.
After examining the tire marks on the road, Officer Dragoo opined that the
Mercedes struck the Toyota on its passenger side, rocking the Toyota to the point where
the driver’s side tires came off the ground. The two cars then separated, with the Toyota
going into a clockwise spin heading toward a traffic signal pole. The driver’s side of the
Toyota then struck the pole, which sent the car into an even more rapid spin until it came
to a rest. The Mercedes continued on its own path toward the traffic signal pole. Officer
Dragoo did not see anything on the road that would indicate “prebraking” by the
Mercedes. However, Officer Dragoo watched some of the videos related to the case, and
he saw that the Mercedes’s brake lights illuminated shortly before the crash. He opined
that if the Mercedes’s driver had pressed hard on the car’s brakes, there would have been
a set of accompanying tire marks on the ground. But there were no tire marks.

5
 California Highway Patrol Officer Aaron Huddleston testified as an expert in
electronic data retrieval and collision reconstruction. He assisted in the investigation of
the crash and retrieved the Toyota’s electronic data recorder. Based on the data retrieved
from the electronic data recorder, the Toyota was traveling between 13.7 to 14.2 miles
per hour at the time of the crash.
The Mercedes did not have an electronic data recorder, but Officer Huddleston
used the “angular momentum principle” and calculated that the Mercedes was traveling at
approximately 64 miles per hour before the crash. Using the “Monte Carlo
methodology,” Officer Huddleston calculated that the Mercedes was traveling between
55.1 and 75.6 miles per hour before the crash.
f. Coleman’s Prior Convictions
The parties stipulated that on December 17, 2008, Coleman was convicted of
carrying a concealed firearm (§ 12025, subd. (b)(3)) and that on February 26, 2009,
Coleman was convicted of possession of a concealed and loaded firearm (§ 12025,
subd. (b)(6)).
g. Evidence of Other Crimes
On March 25, 2009, Lodi Police Department Corporal Eric Bradley was
conducting surveillance on Coleman. Corporal Bradley saw Coleman and another man
get inside a car with Coleman in the driver’s seat. Corporal Bradley followed them.
Eventually, he saw Coleman drive through a red light. Corporal Bradley activated his
emergency lights and honked his air horn, but Coleman continued driving and accelerated
from around 60 miles per hour to over 100 miles per hour. The road that Coleman was
driving on had a speed limit of 55 miles per hour.
Eventually, Corporal Bradley lost sight of Coleman’s car. Corporal Bradley
slowed down but continued to drive. He then came across the sight of Coleman’s car
crashed into a parked car. Coleman was nowhere to be seen.

6
 3. The Verdict and Sentencing
On October 25, 2017, the jury found Coleman guilty of two counts of second
degree murder (§ 187), one count of possession of a firearm by a felon (§ 29800,
subd. (a)(1)), and one count of reckless driving while evading a peace officer (Veh. Code,
§ 2800.2, subd. (a)). The trial court found the prior strike conviction allegation to be true.
On April 6, 2018, the trial court sentenced Coleman to an indeterminate term of 60
years to life, composed of two consecutive terms of 30 years to life for the two murder
convictions (§ 187) and a concurrent term of six years for his reckless driving conviction
(Veh. Code, § 2800.2, subd. (a)), and a determinate term of four years for possession of a
firearm by a felon (§ 29800, subd. (a)(1)).
DISCUSSION
1. Instructional Error
Coleman argues that the trial court erred when it declined to instruct the jury that
implied malice requires an act dangerous to human life when there is a high probability
that it will cause death as described in People v. Thomas (1953) 41 Cal.2d 470 (Thomas).
Coleman insists that the definition of implied malice found in Thomas is stricter than the
definition found in CALCRIM No. 520, which the jury was instructed with. Thus, he
argues that prejudicial error occurred, and his conviction must be reversed.
a. The Instructions Given to the Jury
At trial, the jury was instructed with a modified version of CALCRIM No. 520,
which defines the elements of murder as follows: “1. The defendant committed an act
that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had
a state of mind called malice aforethought.”
CALCRIM No. 520 gives the following definition of implied malice: “Implied
malice is a kind of malice aforethought. Proof of implied malice is sufficient to establish
the state of mind required for murder. [¶] The defendant acted with implied malice if: [¶]
1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the
7
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.”
CALCRIM No. 520 also provides additional instructions on malice aforethought
and causation. First, CALCRIM No. 520 clarifies malice aforethought as follows:
“Malice aforethought does not require hatred or ill will toward the victim. It is a mental
state that must be formed before the act that causes death is committed. It does not
require deliberation or the passage of any particular period of time.”
The instruction then explains causation: “An act causes death if the death is the
direct, natural, and probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In deciding
whether a consequence is natural and probable, consider all the circumstances established
by the evidence.”
At trial, Coleman’s trial counsel requested that the trial court also instruct the jury
with the following definition of implied malice, which echoed the language found in
Thomas, supra, 41 Cal.2d 470: “For the purpose of defining the second element of
implied malice, an act is dangerous to human life when there is a high probability it will
result in death. Such an act is required before implied malice may be found.” The trial
court declined to give this requested instruction.
b. Definition of Implied Malice
Murder is “the unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) Malice can either be express or implied. (§ 188,
subd. (a).) “Malice is express when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature.” (Id., subd. (a)(1).) On the other
hand, “[m]alice is implied when no considerable provocation appears, or when the

8
circumstances attending the killing show an abandoned and malignant heart.” (Id.,
subd. (a)(2).)
“The statutory definition of implied malice, a killing by one with an ‘abandoned
and malignant heart’ (§ 188), is far from clear in its meaning.” (People v. Knoller (2007)
41 Cal.4th 139, 151 (Knoller).) The term “invites confusion and unguided speculation,
for it ‘could lead the jury to equate the malignant heart with an evil disposition or a
despicable character; the jury, then, in a close case, may convict because it believes the
defendant a “bad man.” ’ ” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 (Nieto
Benitez).)
As a result, “[t]wo lines of decisions developed, reflecting judicial attempts to
‘translate this amorphous anatomical characterization of implied malice into a tangible
standard a jury can apply.’ ” (Nieto Benitez, supra, 4 Cal.4th at p. 103.) “The earlier of
these two lines of decisions . . . originated in Justice Traynor’s concurring opinion in
[Thomas, supra, 41 Cal.2d 470, 480], which stated that malice is implied when ‘the
defendant for a base, antisocial motive and with wanton disregard for human life, does an
act that involves a high degree of probability that it will result in death.’ ” (Knoller,
supra, 41 Cal.4th at p. 152.) This has been referred to as the Thomas test. (Ibid.)
The second of the two lines of decisions dates from the California Supreme
Court’s opinion in People v. Phillips (1966) 64 Cal.2d 574, overruled on a different
ground as stated in People v. Flood (1998) 18 Cal.4th 470, 490. In Phillips, the Supreme
Court determined that malice is implied when the killing is proximately caused by “ ‘an
act, the natural consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another and who
acts with conscious disregard for life.’ ” (Phillips, supra, at p. 587.) This has been
referred to as the Phillips test.
In People v. Watson (1981) 30 Cal.3d 290, the California Supreme Court held that
the definitions of implied malice articulated in Thomas and Phillips were substantively
9
similar and articulated the same standard. (Id. at p. 300.) In subsequent cases, the
Supreme Court has consistently concluded that these two standards are the same. (Nieto
Benitez, supra, 4 Cal.4th at p. 104; Knoller, supra, 41 Cal.4th at p. 152; People v.
Dellinger (1989) 49 Cal.3d 1212, 1219 (Dellinger).)
c. Refusal to Give Coleman’s Clarifying Instruction
Coleman argues that the trial court erred when it refused to give his clarifying
instruction on implied malice because CALCRIM No. 520, which largely mirrors the
language in the Phillips test, also states that a natural and probable consequence is one
that “a reasonable person would know is likely to happen if nothing unusual intervenes.”
(Italics added.) Therefore, Coleman argues that CALCRIM No. 520’s definition of
implied malice is different than the Thomas test’s “high degree of probability” standard.
(Thomas, supra, 41 Cal.2d at p. 480.) Coleman insists that a likelihood of death is less
than a high probability of death; thus, the trial court’s failure to give his clarifying
instruction effectively lowered the prosecution’s burden of proof and resulted in
reversible error.
A trial court has a sua sponte duty to give “correct instructions on the basic
principles of the law applicable to the case that are necessary to the jury’s understanding
of the case” (People v. Williams (2009) 170 Cal.App.4th 587, 638), including instructions
“on all the elements of the charged offenses and enhancements.” (Id. at pp. 638-639.)
However, “a trial court may properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially confusing.”
(People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).) An appellate court reviews jury
instructions de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
First, Coleman argues that the Thomas test articulates a higher standard than the
Phillips test because it requires that the jury find that the defendant commit an act
dangerous to life that has a high probability that it will result in death. To support his
position, Coleman cites to Justice Liu’s concurrence in People v. Cravens (2012) 53
10
Cal.4th 500, 512 (conc. opn. of Liu, J.) (Cravens). In Cravens, Justice Liu noted that
prior California Supreme Court cases had stated a preference for the Phillips test’s
formulation for the subjective component of implied malice (“conscious disregard for
life”) over the Thomas test’s formulation, but the Supreme Court had also “never
disavowed the Thomas formulation of implied malice, particularly with respect to the
objective component,” which, under Thomas, requires “ ‘an act that involves a high
degree of probability that it will result in death.’ ” (Cravens, supra, at p. 513 (conc. opn.
of Liu, J.); see Dellinger, supra, 49 Cal.3d at p. 1221 [concluding that the better practice
is to instruct jury with “straightforward language of the ‘conscious disregard for human
life’ definition of [the subjective component of] implied malice”].)
Justice Liu observed that the majority opinion in Cravens cited only the Phillips
test and did not mention the Thomas test when examining whether there was sufficient
evidence to support the objective component of implied malice. (Cravens, supra, 53
Cal.4th at p. 513 (conc. opn. of Liu, J.).) After reiterating that the Supreme Court had
previously held that the Thomas test was equivalent to the Phillips test, Justice Liu
determined that the majority’s failure to discuss the Thomas test—even though the
Cravens defendant and the Court of Appeal below relied upon it—“suggests (but does
not hold) that the Phillips formulation matters in a close case such as this.” (Id. at p. 514
(conc. opn. of Liu, J.).) Justice Liu then wrote, “If Thomas’s ‘high degree of probability’
test is to become disfavored in our doctrine, I prefer we consider and resolve the issue
explicitly—if not in this case, then in a future case—instead of leaving it to mere
implication.” (Ibid. (conc. opn. of Liu, J.).) Justice Liu stated that he expressed no views
on Thomas’s continued validity because the issue was not specifically before the court.
(Ibid. (conc. opn. of Liu, J.).)
Coleman argues that Justice Liu’s concurrence in Cravens suggests that there is a
distinction between the Phillips test and the Thomas test. Justice Liu’s concurrence,
however, is not binding precedent. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383
11
[“ ‘no opinion has value as a precedent on points as to which there is no agreement of a
majority of the court’ ”].) Moreover, as Justice Liu himself noted in his concurrence, the
California Supreme Court has consistently held in past cases that the Phillips test and the
Thomas test are substantively the same. (Cravens, supra, 53 Cal.4th at p. 514 (conc. opn.
of Liu, J.); Nieto Benitez, supra, 4 Cal.4th at p. 104; Knoller, supra, 41 Cal.4th at p. 152;
Dellinger, supra, 49 Cal.3d at p. 1219.) The Supreme Court has never expressly
disapproved the Thomas test, nor has the court ever concluded that the Phillips test and
the Thomas test articulate a different standard. We are bound by the Supreme Court’s
prior decisions on this issue, and Coleman’s contrary argument must be rejected. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Furthermore, the California Supreme Court dismissed an argument similar to
Coleman’s claim of instructional error in Nieto Benitez, supra, 4 Cal.4th 91. In Nieto
Benitez, the jury was instructed that to find implied malice, it must find that “ ‘[t]he
natural consequences of the [defendant’s] act [were] dangerous to human life.’ ” (Id. at
p. 100.) On appeal, the defendant argued that the trial court misstated the law because
the instructions given to the jury omitted “a requirement that [the] defendant commit the
act with a high probability that death will result.” (Id. at p. 111.) The Supreme Court
rejected this challenge, concluding that “the two linguistic formulations [under Phillips
and Thomas]—‘an act, the natural consequences of which are dangerous to life’ and ‘an
act [committed] with a high probability that it will result in death’ are equivalent . . . .”
(Ibid.)
Like the jury in Nieto Benitez, the jury in this case was instructed that the second
element of implied malice was that “[t]he natural and probable consequences of the act
were dangerous to human life.” As stated in Nieto Benitez, this language is substantively
the same as the clarifying instruction that Coleman requested—that an act is dangerous to
human life when there is a high probability it will result in death. (Nieto Benitez, supra, 4

12
Cal.4th at p. 111.) The trial court was also not required to give instructions that it found
to be duplicative. (Moon, supra, 37 Cal.4th at p. 30.)
Coleman argues that Nieto Benitez does not foreclose his argument because the
case considered the definition of implied malice set forth in CALJIC No. 8.31, which did
not contain the additional definition of “natural and probable consequence” found in
CALCRIM No. 520—that “a natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes.” (Second italics
added.)
We find no merit in Coleman’s argument. When we review claims of instructional
error, we must consider the instructions as a whole and do not assess error based solely
on one part of an instruction. (People v. Salazar (2016) 63 Cal.4th 214, 248.) As we
have stated above, CALCRIM No. 520 uses the phrase “natural and probable
consequence” in two separate areas: when discussing causation and when describing the
second element of implied malice. The “likely to happen” definition of a “natural and
probable consequence” found in CALCRIM No. 520 does not immediately follow the
instruction’s definition of implied malice. The definition is found in a separate paragraph
following the definitions of murder and implied malice, and appears in the following
context: “An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without the act. A
natural and probable consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes.” In other words, the definition of a “natural and
probable consequence” that Coleman takes issue with is directed at whether an act causes
death, not at any of the elements of implied malice.
Even if we assume that a reasonable juror applied the “likely to happen” definition
of a “natural and probable consequence” to the second element of implied malice, we
would reject Coleman’s argument that failing to include his clarifying instruction
confused the jury or diluted the prosecution’s burden of proof. Multiple cases have used
13
the phrase likely to cause death or injury when discussing implied malice. In People v.
Conley (1966) 64 Cal.2d 310, abrogated by statute on another ground as stated in People
v. Bryant (2013) 56 Cal.4th 959, the California Supreme Court stated that a defendant has
the “wanton disregard for human life or antisocial motivation that constitutes malice
aforethought” if “he does an act that is likely to cause serious injury or death to another.”
(Conley, supra, at p. 322, italics added.) Likewise, in People v. Coddington (2000) 23
Cal.4th 529, abrogated by statute on another ground as stated in People v. Zamudio
(2008) 43 Cal.4th 327, the Supreme Court determined that evidence that the defendant
“acted with actual or presumptive knowledge that serious bodily injury was likely to
occur” permitted an inference of implied malice. (Coddington, supra, at p. 592, italics
added.)
Coleman, however, argues that the term “likely” is ambiguous and requires a
clarifying instruction. In support of his position, Coleman cites to People v. Superior
Court (Ghilotti) (2002) 27 Cal.4th 888. In Ghilotti, the California Supreme Court stated
that the term “ ‘likely’ may be used flexibly to cover a range of expectability from
possible to probable.” (Id. at p. 916.) Ghilotti, however, does not aid Coleman. Ghilotti
considered the use of the term “likely” in the specific legal context of the Sexually
Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), and the term has a
“particular and technical meaning” within the SVPA. (Ghilotti, supra, at pp. 916-917;
People v. Roberge (2003) 29 Cal.4th 979, 988 [“[n]ot all . . . dictionary definitions of
‘likely’ are consistent with the particular and technical meaning the SVPA assigns that
term”].) “ ‘A word or phrase having a technical, legal meaning requiring clarification by
the court is one that has a definition that differs from its nonlegal meaning.’ ” (People v.
Griffin (2004) 33 Cal.4th 1015, 1023.)
In this case, we are not concerned with the technical, legal definition of the term
“likely.” The Oxford English Dictionary defines the “likely” as “having a high chance of
occurring; probable.” (Oxford English Dict. Online (2016) < https://perma.cc/6AD4-
14
EVTG> [as of Dec. 30, 2020].) This definition fits within the context of CALCRIM
No. 520 and the elements of implied malice—that the natural and probable consequence
(one that a reasonable person would know is likely to happen if nothing unusual
intervenes) of Coleman’s act must have been dangerous to human life. The trial court
was not required to instruct on the meaning of terms that are commonly understood.
(People v. Malone (1988) 47 Cal.3d 1, 54-55.)
Thus, the trial court did not err when it declined to give Coleman’s clarifying
instruction on the definition of implied malice.
2. Prosecutorial Misconduct and Ineffective Assistance of Counsel
Next, Coleman argues that the prosecutor committed misconduct when she argued
that his actions after he committed the crime showed that he had implied malice. He also
insists that his trial counsel rendered ineffective assistance by failing to request that the
trial court admonish the jury to disregard the prosecutor’s improper argument.
a. The Prosecutor’s Closing Argument
During her closing argument, the prosecutor made the following statement: “Now
going to the conscious disregard of human life. In determining whether a defendant acted
with conscious disregard for human life, you can consider his conduct and state of mind
before, during, and after the crime.” Coleman’s trial counsel objected to this argument
on the ground that it misstated the law.
Following a sidebar with both counsel, the trial court admonished the jury as
follows: “All right, members of our jury, if there is a conflict or an inconsistency
between what the attorneys say and what the jury instructions say the jury instructions
control, okay? Remember the comments of counsel are not evidence.”
The trial court then permitted the prosecutor to continue her closing argument.
The prosecutor stated: “When you are looking at somebody’s mental state and trying to
figure out what that is, you have to look at what that person did before, during, and after
for you to know what their mental state is. That makes sense. That’s just common sense.
15
And here you’re going to have to decide what his mental state is and whether that is a
conscious disregard for human life. You have to look at all of the evidence: before,
during and after.”
The prosecutor then argued that Coleman’s actions before the crash, such as his
failure to stop at red lights and his decision to evade the police, showed that he had the
required mental state. The prosecutor then turned to Coleman’s actions after the crash
and argued: “But you have more evidence of his state of mind. You have more evidence
of malice. And that’s what he did after. After this crash, . . . he fled on foot before the
police can arrive. And the police arrived what, 30, 40 seconds, less than a minute? He
threw the gun over the fence. He put himself over—his life over other human lives, even
after he killed Miss Zavala and Miss Castro in this violent collision that he did, that he
caused. He got out of his car and he had the wherewithal to get his gun. Whether it was
in his car or on his person he got out, closed the door and threw it over the fence and ran
before the police could even arrive. He did all of this after this type of wreckage
occurred, okay? What does that tell you? It tells you that he knew what was about to
happen. He had a plan for it, okay? There’s a plan A, and the plan is to get away. We
get that, right, he wanted to get away. Dangerous to human life, okay. [¶] The plan B is if
he crashes, he’s going to throw his gun away and he’s going to run, okay. Because
anybody else who is going to be in that type of collision, this type of crash that is so
violent, and that clearly killed somebody in the car, would be shaken up and traumatized
like ‘what just happened?’ [¶] But no. [¶] The defendant, he’s not shaken up or
traumatized at all. He knows exactly what he’s doing. He’s going to get that gun.
Throw it over the fence and be gone. He has the wherewithal to do all of that before the
CHP and Mr. Calhoun arrived. That tells you what he’s thinking. You get to put that in
your consideration when you consider what he’s thinking because—”
Coleman’s trial counsel objected to the argument, and the trial court had an
unreported bench conference with both attorneys. After the bench conference, the
16
prosecutor continued: “Let me clarify. What he does after allows you to know, right,
and decide what he was thinking before, right? I think that’s common sense. You look at
what somebody does before, during and after to see what they were thinking about
before. So this is malice aforethought, right, the malice is there before he does the
driving that causes the death. But in order to determine that, you need to look at all of the
evidence, and you need to look at his actions and what his state of mind was to know
what it was before. That’s what you were deciding.”
Later, the prosecutor added: “After [Coleman] killed two people he fled, right?
He continued to flee until the police found him 18 days later. He never turned himself in.
He appeared nervous. He was looking around. Wearing fake glasses. Covering up. And
then he threw up when he was arrested. And you can use that as consciousness of guilt.
You can use that as evidence of what he was thinking before he crashed, right?”
After both attorneys made their closing argument and outside the presence of the
jury, the trial court stated: “I just did want to put on the record, to the best of the court’s
ability, the discussion that we had off the record regarding [the prosecutor’s] argument
about Mr. Coleman’s actions after the collision, and the fact that that could be used to
support a finding of malice aforethought. [¶] [The prosecutor] clarified at the bench that,
perhaps, the manner in which it was being stated was not what she intended, and that is
that she intended to use what Mr. Coleman did after the collision to show what he was
thinking before the collision. And the court would rule that that can be used as proper
argument. But the manner in which the slide was presented said that the actions after
could be used to support malice aforethought. And that is just a misstatement of the law.
It is parsing. It may be splitting hairs, but it is a misstatement of the law.”
In response, the prosecutor argued that “[t]he actions that [Coleman] does
afterward can be considered to determine whether he had malice aforethought.” The trial
court disagreed and stated: “They cannot. They can be used to show what he may have
been thinking before. Then you’re going to talk about what he was thinking before.
17
And that could be malice aforethought. You’ll get to the same place, it’s how you’re
phrasing it. So we can’t say that what he did after supports malice aforethought. We can
say that what he did after may support what he was thinking beforehand, your getaway
plan, you had some specifics that you were arguing. [¶] I’m absolutely not precluding you
from arguing those. I think stating that that is malice aforethought, what he did after is an
incorrect statement of the law. I am not precluding you from arguing what he did after.
And I’m also not precluding you from connecting with what he did after to what he may
have been thinking before. And I believe [defense counsel] is not either. It’s saying that
what he did after is malice aforethought. And that’s how you stated it.”2
b. Postcrime Actions as Evidence of Implied Malice
Coleman argues that the prosecutor committed misconduct when she argued that
Coleman’s actions after the car crash showed that he had implied malice. Coleman also
insists that his trial counsel was ineffective for failing to request a more specific
admonition after the prosecutor made her argument. As we explain, we find no merit in
Coleman’s claims.
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People
v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)

2
In his opening brief, Coleman cites to the slideshow that the prosecutor used
during her closing argument. Coleman, however, did not request that the exhibit be
transferred to this court. (See Cal. Rules of Court, rule 8.224(a)(1).)
18
 Prosecutors are given “significant leeway in discussing the legal and factual merits
of a case during argument.” (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
However, a prosecutor commits misconduct if he or she misstates the applicable law.
(People v. Boyette (2002) 29 Cal.4th 381, 435.) “When attacking the prosecutor’s
remarks to the jury, the defendant must show that, ‘[i]n the context of the whole
argument and the instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous
manner.’ ” (Centeno, supra, at p. 666.)
First, we reject Coleman’s argument that the prosecutor committed misconduct
when she argued that his postcrime actions could be used as evidence that he had the
mental state of implied malice at the time he committed the crime. In support of his
position, Coleman relies on People v. Anderson (1968) 70 Cal.2d 15, 32. In Anderson,
the defendant was convicted of murdering a 10-year-old girl. (Id. at p. 19.) After
committing the murder, the defendant attempted to “ ‘cover up’ the crime by lying to the
brother and the mother of the victim.” (Id. at p. 32.) The California Supreme Court in
Anderson concluded that “[a]lthough this type of evidence may possibly bear on
defendant’s state of mind after the killing, it is irrelevant to ascertaining defendant’s state
of mind immediately prior to, or during, the killing. Evasive conduct shows fear: it
cannot support the double inference that defendant planned to hide his crime at the time
he committed it and that therefore defendant committed the crime with premeditation and
deliberation.” (Ibid.) As a result, Anderson concluded there was insufficient evidence to
support a finding of premeditation and deliberation without evidence of “(1) defendant’s
actions prior to the killing, (2) a ‘motive’ or ‘reason’ from which the jury could
reasonably infer that defendant intended to kill [the victim], or (3) a manner of killing
from which the jury could reasonably infer that the wounds were deliberately calculated
to result in death.” (Id. at pp. 33-34.)

19
 Anderson does not hold that evidence of postcrime conduct cannot be probative of
a defendant’s state of mind at the time of the crime. In People v. Thompson (2010) 49
Cal.4th 79, 113, the California Supreme Court clarified its decision in Anderson as
follows: “While our comment in Anderson thus warns against using evidence of a
defendant’s postcrime actions and statements as the sole support for upholding a finding
of premeditated and deliberate murder, such postcrime actions and statements can support
a finding that defendant committed a murder for which his specific mental state is
established by his actions before and during the crime.” (Italics added.)
In this case, Coleman’s postcrime conduct—throwing away the gun and fleeing
the scene—supported an inference that he had implied malice at the time of the crash.
And unlike Anderson, Coleman’s postcrime conduct was not the only evidence of
implied malice. As the prosecutor argued, Coleman’s actions before the crime were also
indicative of his mental state, including his decision to run multiple red lights and to
evade the police. Therefore, the prosecutor did not misstate the law or commit
misconduct when she argued that Coleman’s postcrime conduct was probative as to his
mental state at the time he committed the crime.
We acknowledge that according to the trial court’s comments, the prosecutor
presented a slide to the jury that suggested that Coleman acted with implied malice after
the crash and that having the mental state of implied malice after the crash was sufficient
to support a finding of murder.
Even if the prosecutor’s slide misstated the law, Coleman’s trial counsel objected
to the misstatement below, and the trial court gave an admonition to the jury. The trial
court advised the jury that conflicts or inconsistencies between the attorneys’ arguments
and the jury instructions must be resolved in favor of the jury instructions. Here, the jury
was instructed with CALCRIM No. 520 on the elements of implied malice murder, which
required that the jury find that the defendant had the mental state of implied malice when
he committed the act. In other words, the jury was instructed that to find Coleman guilty
20
of murder, he must have had implied malice at the time of the crash, not after the crash.
We presume that the jury followed these instructions. (People v. Edwards (2013) 57
Cal.4th 658, 764 [jury is presumed to have followed instruction that statements of
attorneys are not evidence].)
Furthermore, when we consider the prosecutor’s remarks as a whole, we do not
believe “there was ‘a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ ” (Centeno, supra, 60
Cal.4th at p. 666.) As we have described, the bulk of the prosecutor’s argument properly
focused on Coleman’s postcrime conduct as probative of his mental state during the
crime.
Finally, Coleman argues that his trial counsel rendered ineffective assistance by
failing to request that the trial court give the jury a more specific admonition. His trial
counsel, however, could have reasonably believed that the trial court’s admonition to the
jury was already sufficient. (Strickland v. Washington (1984) 466 U.S. 668, 688
[ineffective assistance of counsel requires representation that was objectively
unreasonable].) Thus, Coleman’s claim of ineffective assistance of counsel fails.
3. Cumulative Error
Coleman argues that to the extent any of the alleged errors are not individually
prejudicial, the cumulative effect of the errors requires reversal of the judgment. (Hill,
supra, 17 Cal.4th p. 844.) We have considered each of Coleman’s arguments and have
concluded that there was no instructional error and no prejudicial prosecutorial
misconduct. Since there are no errors to cumulate, Coleman’s claim of cumulative error
must be rejected.
4. Fines and Fees
Finally, Coleman argues that under People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), the trial court erred in imposing certain fines and fees without first determining
his ability to pay.
21
 a. Coleman’s Fines and Fees
At the sentencing hearing, the trial court imposed a $300 restitution fine under
section 1202.4, subdivision (b)(2), a $4 emergency medical air transportation fine under
Government Code section 76000.10, a $160 court security fee under section 1465.8, and
a $120 criminal conviction assessment under Government Code section 70373. The trial
court declined to impose the $129.75 criminal justice administration fee because there
was “no evidence . . . before the Court which would justify the imposition of that fee.”
The trial court asked Coleman’s trial counsel if Coleman waived the right to “[a] hearing
regarding his ability to pay the minimum fines and fees imposed under these orders, as
well as a breakdown of the fines and fees imposed under these orders.” Coleman’s trial
counsel answered, “Yes, Your Honor.”
The trial court also ordered Coleman to pay victim restitution in the amount of
$10,000 to the California Victims Compensation Board. When asked about the victim
restitution order, Coleman’s trial counsel stated, “[M]y client would like the Court to
know that prior to his incarceration I believe he had just gotten a job. But he had no,
essentially, means, or means of employment. I would submit on that.” The trial court
then asked if Coleman wanted a hearing on victim restitution, and Coleman’s trial
counsel answered, “No, Your Honor.”
b. Dueñas3
In Dueñas, the defendant was an unemployed, homeless probationer with cerebral
palsy who spent her benefits and food stamps on her two children. (Dueñas, supra, 30
Cal.App.5th at pp. 1160-1161.) The defendant had received juvenile citations when she
was a teenager, which led to fines, which led to her driver’s license getting suspended

3
Appellate courts have reached conflicting conclusions on whether Dueñas was
correctly decided, and the issue is presently pending before the California Supreme
Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.)
22
after she could not repay her debts. (Id. at p. 1161.) She was then convicted several
times for driving with a suspended license, which resulted in her spending time in jail
because she could not afford to pay the fines associated with her convictions. (Ibid.)
After her most recent conviction of driving with a suspended license, the defendant
requested that the trial court set a hearing to determine her ability to pay
previously-assessed attorney fees and other court fees. (Id. at p. 1162.) After an
ability-to-pay hearing, the trial court determined that the defendant lacked the ability to
pay attorney fees and waived them. (Id. at p. 1163.) The trial court, however, also
determined that the criminal conviction assessment imposed under Government Code
section 70373 and the court operations assessment imposed under section 1465.8 were
mandatory regardless of the defendant’s ability to pay, and the defendant had not shown
the “ ‘compelling and extraordinary reasons’ ” required by section 1202.4, subdivision (c)
to justify waiving the assessments. (Dueñas, supra, at p. 1163.)
On appeal, the Second Appellate District reversed the trial court’s order. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) With respect to the criminal conviction and court
operations assessments, Dueñas first observed that both assessments were not intended to
be punitive in nature. (Id. at p. 1165.) Dueñas then examined several California and
United States Supreme Court decisions involving indigent defendants and fees: Griffin v.
Illinois (1956) 351 U.S. 12, which held that due process and equal protection principles
require that all people charged with a crime be treated equally; In re Antazo (1970) 3
Cal.3d 100, which invalidated the practice of requiring defendants to serve jail time if
they were unable to pay a fine and penalty assessment; and Bearden v. Georgia (1983)
461 U.S. 660, which held that it violated the federal Constitution to revoke an indigent
defendant’s probation for failing to pay a fine and restitution. (Dueñas, supra, at
pp. 1166-1169.) Relying on these three cases, Dueñas held that imposing the criminal
conviction and court operations assessments without determining a defendant’s ability to
pay was fundamentally unfair and violated due process. (Id. at pp. 1168-1169.)
23
 With respect to the restitution fine under section 1202.4, subdivision (b), Dueñas
held that the execution of the fine must be stayed until the People can demonstrate that
the defendant has the ability to pay the fine. (Dueñas, supra, 30 Cal.App.5th at p. 1172.)
c. Waiver
Here, the trial court expressly asked Coleman if he waived his right to “[a] hearing
regarding his ability to pay the minimum fines and fees” imposed in his case. Coleman’s
trial counsel responded “[y]es.” Defendant, however, argues that at the time of his
waiver, the fines and fees imposed in his case were not subject to an ability to pay
determination, he was not giving up a legal recognized right when his counsel waived a
hearing on his behalf, and the fines and fees would have been imposed regardless of the
hearing’s outcome. The Attorney General disagrees and argues that Coleman cannot
challenge his fines and fees because he failed to raise an objection below.
On this record, we conclude that Coleman has waived his right to an ability to pay
hearing. The trial court gave Coleman the opportunity to demonstrate his inability to pay
the fines and fees imposed in this case. Coleman, through his trial counsel, expressly
relinquished his right to a hearing on his ability to pay—which is what he now seeks on
appeal. Therefore, we conclude that his express waiver at the sentencing hearing waived
any right to an ability to pay hearing.
DISPOSITION
The judgment is affirmed.

24
 Premo, Acting P.J.

WE CONCUR:

Elia, J.

Bamattre-Manoukian, J.

People v. Coleman
H045801