People v. Garcia CA4/2

Filed 7/21/21 P. v. Garcia CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075995

v. (Super.Ct.No. 16CR003124)

DAMIAN GARCIA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,

Judge. Affirmed.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and

Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting

and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Damian Garcia led police on a high-speed pursuit while he was driving

a stolen car, high on methamphetamine, and uncontrollably sleepy. It was around

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4:30 a.m., so there were very few other cars around. The pursuit ended when defendant

ran the red light at the end of a freeway offramp and broadsided a car in the intersection,

killing the other driver.

In a jury trial, defendant was found guilty of second degree murder (Pen. Code,

§ 187, subd. (a)), evading an officer causing death (Veh. Code, § 2800.3, subd. (b), and

driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)). He was

sentenced to a total of 18 years to life in prison, along with the usual fines, fees, and

ancillary orders.

Defendant contends:

1. There was insufficient evidence of implied malice to support the conviction for

second degree murder.

2. The trial court erred by denying defendant’s request for a special instruction on

implied malice.

We find no error. Hence, we will affirm.

I

STATEMENT OF FACTS

“[P]retty late” on the night of March 7-8, 2016, a group of men robbed a teenager

at an ATM and took his mother’s black 2015 Nissan Sentra.

At an unknown time after midnight, defendant picked up his friend Richard Cerda.

Defendant was driving a Nissan. Cerda suspected the car was stolen because he had

never seen defendant driving it before.

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 Around 4:30 a.m., Officer Charles Vest was on patrol when he spotted the stolen

Sentra near Baseline and Sierra Way in San Bernardino. He knew it was stolen, because

he had seen it listed on a “hot sheet” of recently stolen vehicles. He also ran a records

check on the license plate, which confirmed that it was stolen. He started following the

Sentra. Meanwhile, he called for backup.

Officer Brandon Koch responded; he pulled up behind Officer Vest. Both

officers turned on their red overhead lights and sirens. Instead of stopping, the Sentra

accelerated away. While making a right turn at Mountain View and Wabash, the Sentra

ran a stop sign and skidded briefly into the wrong lane. It ran three red lights — at

Mountain View and Highland, 30th and Arrowhead, and 30th and E.

Throughout this surface street portion of the pursuit, the Sentra was going 60 to 70

miles an hour (except when it had to slow to make a turn), even in residential areas where

the speed limit was 40 miles per hour. Cerda testified that he did not feel safe, “[b]ecause

we were going fast.”

Traffic was “light.” There were no other vehicles on the road, except for two or

three in the vicinity of a gas station at 30th and E. There were no pedestrians. At some

of the intersections along the way, including 30th and Arrowhead, other officers stopped

traffic, using their lights and sirens, to prevent a collision.

The Sentra got onto the southbound 215 Freeway. It was going from 70 to 120

miles an hour. There was “moderate” traffic on the freeway — some 10 to 15 cars within

300 yards. The Sentra took the Baseline offramp. At the end of the onramp, there was a

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red light. The Sentra ran the red light at 90 miles an hour, then took the Baseline onramp

back onto the freeway again.

The Sentra, now going 100 to 120 miles an hour, cut left, all the way across the

freeway, into the carpool lane. Cerda testified that defendant was driving as fast as Cerda

had ever gone in a car. The speed did not feel safe to him. The Sentra then “shot all the

way [back] across the lanes” to the right and took the Fifth Street offramp. In doing so, it

cut off several vehicles, forcing them to brake to avoid a collision. At that point, Officer

Koch decided that “it was unsafe to continue this pursuit.”

At the end of the offramp, there was a red light. The Sentra ran the red light. Just

at that moment, a black Honda entered the intersection, headed east. The Sentra

“T-bone[d]” the driver’s side of the Honda. Cornelius Holly — the 33-year-old driver of

the Honda — died within minutes.

The Sentra was equipped with a crash data recorder. It stored data for the five

seconds before the collision. It showed that during the first four of those five seconds,

defendant’s speed decreased from 91 miles an hour to 63 miles an hour. During that

time, he “was on the gas, came off onto the brakes briefly, then back on the gas again.”

In the last second before impact, he braked hard and steered to the right, reducing his

speed still further to 43 miles an hour.

The Sentra’s brakes and tires were in good working order.

The entire pursuit lasted approximately five minutes. During that time, Cerda told

defendant three times to stop the car.

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 Defendant was arrested and taken to a hospital. Officers were unable to perform

full field sobriety tests because defendant “couldn’t stay awake for more than 10

minutes.”

Defendant told medical personnel that he had recently used methamphetamine and

marijuana. His blood tested positive for methamphetamine — 574 nanograms of

methamphetamine and 133 nanograms of amphetamine (a metabolite) per milliliter.

Most positive methamphetamine tests are between 100 and 500 nanograms per milliliter.

Ola Bawardi, an expert forensic toxicologist, testified that methamphetamine is a

central nervous system stimulant. It can affect perception of time and speed. People

under the influence of methamphetamine become easily distracted and unable to

multitask. “[T]hey may make quick and erratic decisions.” “[T]heir judgment can go to

hell . . . [.]” Methamphetamine can loosen inhibitions and promote risk-taking. Users

may experience a sense of euphoria and invulnerability. Even though methamphetamine

is a stimulant, a user who has been kept awake by it for too long may become

uncontrollably sleepy.

Bawardi admitted that there is “no clear scientific correlation[]” between blood

level of methamphetamine and level of impairment.

II

THE SUFFICIENCY OF THE EVIDENCE OF IMPLIED MALICE

Defendant contends that there was insufficient evidence of implied malice to

support his conviction for second degree murder.

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 “‘We often address claims of insufficient evidence, and the standard of review is

settled. “A reviewing court faced with such a claim determines ‘whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]

We examine the record to determine ‘whether it shows evidence that is reasonable,

credible and of solid value from which a rational trier of fact could find the defendant

guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in

support of the judgment the existence of every fact the trier could reasonably deduce

from the evidence.’”’ [Citation.]” (People v. Flinner (2020) 10 Cal.5th 686, 748.)

“‘Murder is the unlawful killing of a human being, or a fetus, with malice

aforethought.’ [Citation.] ‘Such malice may be express or implied. It is express when

there is manifested a deliberate intention unlawfully to take away the life of a fellow

creature. It is implied, when no considerable provocation appears, or when the

circumstances attending the killing show an abandoned and malignant heart.’ [Citation.]

[¶] . . . ‘We have interpreted implied malice as having “both a physical and a mental

component. The physical component is satisfied by the performance of ‘an act, the

natural consequences of which are dangerous to life.’ [Citation.] The mental component

is the requirement that the defendant ‘knows that his conduct endangers the life of

another and . . . acts with conscious disregard for life.’ [Citation.]”’ [Citation.]” (People

v. Soto (2018) 4 Cal.5th 968, 974.)

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 In People v. Watson (1981) 30 Cal.3d 290 (Watson), the Supreme Court compared

the implied malice necessary for second degree murder to the gross negligence required

for vehicular manslaughter. It said: “A finding of gross negligence is made by applying

an objective test: if a reasonable person in defendant’s position would have been aware

of the risk involved, then defendant is presumed to have had such an awareness.

[Citation.] However, a finding of implied malice depends upon a determination that the

defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]”

(Id. at pp. 296-297.)

Here, there is no evidence that defendant had the intent to kill. Accordingly, to

support his conviction for murder, there must be sufficient evidence that he subjectively

appreciated the risk to life that he created.

Cases have held that “a pattern of reckless driving immediately prior to a fatal

accident may be indicative of [implied] malice.” (People v. Ricardi (1990) 221

Cal.App.3d 249, 261, fn. 5.)

In People v. Fuller (1978) 86 Cal.App.3d 618, a police officer spotted the

defendants as they were in the act of stealing tires from a car lot. The defendants got into

their car and attempted to make a getaway. (Id. at pp. 621-622.) “[A] high speed chase

ensued which eventually resulted in [the defendants’] car running a red light . . . and

striking another automobile which had entered the intersection. The driver of the other

automobile was killed. . . . The chase from the car lot covered some seven miles and

lasted approximately 10 to 12 minutes. During the chase the [defendants’] car narrowly

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missed colliding with several other cars including two police vehicles that were

positioned to block their escape.” (Id. at p. 622.)

The appellate court held that there was sufficient evidence of second degree

implied malice murder. (People v. Fuller, supra, 86 Cal.App.3d at pp. 628-629.) It

explained: “[The defendants] drove at high speeds through main thoroughfares . . . . At

one point in the chase they drove on the wrong side of [the street] and caused oncoming

cars to swerve off of the road to avoid a head-on collision. They then made a U-turn and

sped back . . . , ran a red light and caused other traffic to stop to avoid a collision. [The

defendants] then drove . . . at speeds estimated between 60 and 75 miles per hour and

headed straight at two oncoming police vehicles which were attempting to block their

flight. [The defendants] did not reduce their speed as they approached the officers’

vehicles, and only a last minute maneuver by the officers avoided a possible fatal

collision. At the next intersection [the defendants’] vehicle which ‘hadn’t slowed down

very much’ ran the red light and struck and killed the driver of the other car. Under these

facts the foreseeability of serious injury or death was apparent to [the defendants].

[Citations.]” (Id. at p. 629.)

In People v. Young (1992) 11 Cal.App.4th 1299, the police pursued the defendant,

who was driving a car that he had just carjacked. (Id. at pp. 1303-1304.) He went up to

70 miles an hour on main streets and 50 miles an hour on residential streets. He made a

right turn on red without stopping, forcing cross-traffic to brake to avoid a collision. He

“briefly” drove on the wrong side of the road, “causing several cars to veer to avoid

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striking him.” (Id. at p. 1304.) He ran three red lights; when he ran a fourth, he hit other

cars, killing one person. (Ibid.) He was convicted of several offenses, including first

degree felony murder. (Id. at p. 1302.)

In the course of discussing the defendant’s claim of cruel and unusual punishment

(People v. Young, supra, 11 Cal.App.4th at pp. 1308-1311), the appellate court stated:

“[T]he . . . death of a bystander during appellant’s reckless high-speed flight in the stolen

vehicle involves an application of the felony-murder rule which is by no means bizarre or

unforeseeable. . . . Although appellant attempts to characterize the death as resulting

from ‘accident,’ the pattern of appellant’s driving supports the conclusion that appellant

harbored a conscious disregard for human life which constituted implied malice,

sufficient to render the homicide a murder even without its connection to the prior

robbery. [Citations.]” (Id. at p. 1309, italics added.)

In People v. Moore (2010) 187 Cal.App.4th 937, the defendant was driving 80 to

90 miles an hour in a 35-mile-an-hour zone. At one point, he crossed over the double

yellow line, forcing drivers going in the opposite direction to move out of his way. While

still going 70 miles an hour, he ran a red light and hit another car, killing a passenger. A

jury found him guilty of, among other things, second degree murder. (Id. at p. 939.)

The appellate court held that there was sufficient evidence of implied malice.

(People v. Moore, supra, 187 Cal.App.4th at pp. 940-942.) It acknowledged that: “The

facts must demonstrate the defendant had a subjective awareness of the risk. [Citation.]

It is not enough that a reasonable person would have been aware of the risk. [Citation.]”

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(Id. at p. 941.) The defendant sought to distinguish both Watson and Fuller, on the

ground that there “a prior near-miss gave the defendant a warning.” (Id. at p. 942.)

However, the court concluded that that distinction was not controlling. (Ibid.)

It then stated: “Here Moore drove 70 miles per hour in a 35-mile-per-hour zone,

crossed into the opposing traffic lane, caused oncoming drivers to avoid him, ran a red

light and struck a car in the intersection without even attempting to apply his brakes. His

actions went well beyond gross negligence. He acted with wanton disregard of the near

certainty that someone would be killed. [¶] Whether Moore was subjectively aware of

the risk is best answered by the question: how could he not be? It takes no leap of logic

for the jury to conclude that because anyone would be aware of the risk, Moore was

aware of the risk.” (People v. Moore, supra, 187 Cal.App.4th at p. 941.)

Here, defendant was so sleepy that he could not stay awake for more than 10

minutes. Nevertheless, he drove 70 miles an hour in residential areas where the speed

limit was 40. While still on surface streets, he ran one stop sign and three red lights

without slowing. When he ran the red light at 30th and E, there were two or three other

cars on the road nearby, though fortunately there were none in the intersection.

During the freeway portion of the pursuit, defendant drove up to 120 miles an

hour. He ran another red light at the Baseline offramp going 90 miles an hour. He

swerved left across all of the lanes, even though traffic was moderate and there were 10

or 15 cars nearby. He swerved right again, even though this meant cutting off other cars

and forcing them to brake.

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 Finally, when he got off at Fifth Street, he slowed somewhat. He tapped the

brakes briefly; inferably he was checking for traffic in the intersection but saw none. In

the last second, inferably, he became aware of the Honda; he braked hard and tried to

steer around it. In Watson itself, the Supreme Court noted, among other facts showing

conscious disregard, that the defendant “belatedly . . . attempted to brake his car before

the collision (as evidenced by the extensive skid marks before and after impact)

suggesting an actual awareness of the great risk of harm which he had created.” (Watson,

supra, 30 Cal.3d at p. 301.)

Significantly, Cerda was aware of the danger. The Sentra was going faster than he

had ever gone in a car in his life. He did not feel safe, “[b]ecause we were going fast.”

He kept telling defendant to stop. Likewise Officer Koch was aware of the danger. He

decided to call off the pursuit at almost the same time as defendant started down the Fifth

Street offramp, because it was too dangerous. As Cerda and Officer Koch were

subjectively aware of the danger, it is reasonably inferable that defendant was, too.

Indeed, much as in Moore, we may well ask: how could he not be?

Defendant argues that “[h]e did not nearly miss any vehicles or need to swerve to

avoid collisions in his driving leading up to the crash.” However, when he swerved on

the freeway, other vehicles nearly missed him and had to brake suddenly to avoid a

collision with him.

Defendant also argues that “[t]here was no evidence appellant had any prior DUI

arrests or attended a DUI or equivalent program, or that he was ever involved in a prior

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traffic accident.” Such evidence, while probative, is not absolutely required. For

example, there was no such evidence in Fuller, Young, or Moore.

Defendant notes that the toxicologist conceded that the level of methamphetamine

in his system would not necessarily cause him to be under the influence. He was not

convicted, however, of driving under the influence; he was convicted of second degree

murder, which does not require either intoxication or impairment. As the prosecutor

aptly noted below, most cases of vehicular implied malice murder involve either

intoxication or evading. In any event, defendant was impaired, as shown by the fact that

he could not stay awake.

Defendant complains that the analysis in Moore “confuses the subjective and

objective elements of implied malice murder . . . .” But if a reasonable person, under the

circumstances, would have been aware of the risk, it is a permissible inference that the

defendant was aware. Watson itself indicated that subjective awareness can be inferred

from objective obviousness when it stated: “‘One who willfully consumes alcoholic

beverages to the point of intoxication, knowing that he thereafter must operate a motor

vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle

capable of great force and speed, reasonably may be held to exhibit a conscious disregard

of the safety of others.’” (Watson, supra, 30 Cal.3d at pp. 300-301.)

This in no way eliminates the subjective-objective distinction. A subjective

standard differs from an objective standard in two respects. First, the jury is not required

to infer subjective awareness from the fact that a reasonable person would have been

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aware. Second, the jury can consider evidence that the defendant lacked subjective

awareness. When implied malice is at issue, the defendant may take the stand and testify

that he or she was not subjectively aware of the risk. And a defendant who does not

testify may introduce evidence that, for particular personal reasons, he or she lacked the

necessary subjective awareness. This distinguishes implied malice from gross

negligence. (Watson, supra, 30 Cal.3d at p. 296 [“A finding of gross negligence is made

by applying an objective test: if a reasonable person in defendant’s position would have

been aware of the risk involved, then defendant is presumed to have had such an

awareness.”].)

Here, for example, the evidence showed that police officers, using their lights and

sirens, had blocked off some intersections to prevent a collision. The jury could have

inferred that defendant expected them to have blocked off the intersection with Fifth

Street, too. However, it was not required to do so, especially as there were no lights and

sirens at Fifth Street and there had been none at Baseline.

We therefore concur with the reasoning in Moore. Under that reasoning, there

was sufficient evidence that defendant was subjectively aware of the risk he was creating

and acted with conscious disregard for life.

III

DEFENDANT’S REQUESTED INSTRUCTION ON IMPLIED MALICE

Defendant contends that the trial court erred by denying his request for a special

instruction on implied malice.

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 A. Additional Factual and Procedural Background.

Defendant requested the following instruction:

“Gross [n]egligence, however egregious, is not sufficient to support a finding of

implied malice.

“The evidence must show that the [d]efendant, at the time he acted, actually knew

that the natural and probable consequences of his act would be that at least one other

person would be placed in imminent danger of death.

“Further[,] the test is not what a reasonable person in the defendant’s position

would have known, but what the defendant actually knew and understood.”

The prosecutor objected to the instruction as argumentative, duplicative, improper,

and irrelevant.

The trial court ruled that the instruction was unnecessary and confusing, because

there were no other instructions on gross negligence or manslaughter. It also ruled that

the subject was adequately covered by the other instructions.

It did give CALCRIM No. 520, which provided, as relevant here:

“The defendant acted with malice aforethought if:

1. He intentionally committed an act;

2. The natural and probable consequences of his act were dangerous to human

life;

3. At the time he knew his act was dangerous to human life; [¶] and

4. He deliberately acted with conscious disregard for life. [¶] . . .

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 “ . . . 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 of the circumstances established by the

evidence.” (Capitalization altered.)1

B. Discussion.

“The trial court must instruct the jury ‘on general principles of law that are closely

and openly connected to the facts and that are necessary for the jury’s understanding of

the case.’ [Citation.]” (People v. Anderson (2018) 5 Cal.5th 372, 413.)

“‘[A] criminal defendant is entitled, on request, to a[n] instruction “pinpointing”

the theory of his defense.’ [Citation.]” (People v. Daveggio and Michaud (2018) 4

Cal.5th 790, 851.) “‘[A] trial court may properly refuse an instruction offered by the

defendant if it incorrectly states the law, is argumentative, duplicative, or potentially

confusing [citation], or if it is not supported by substantial evidence.’ [Citation.]”

(People v. Scully (2021) 11 Cal.5th 542, 592.)

1 During its deliberations, the jury asked for: “Clarification on the ‘act’: is it
from the moment that life was lost, from the moments leading up to the death, or the
entirety of the pursuit or any other definition of what the ‘act’ means.”

The trial court responded: “I cannot give you an exact answer to your question.
[¶] As used in the instructions, the word ‘act’ does not necessarily refer to a specific
moment in time or any specific time interval. It is for you to determine what act or acts
occurred, and when they occurred. [¶] Please review Instruction 520 in its entirety as
you discuss this.”

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 Here, the first paragraph of the instruction was potentially confusing, because it

did not define “gross negligence” and there were no other instructions regarding gross

negligence.

In support of his proposed instruction, defendant quotes Watson, as follows: “A

finding of gross negligence is made by applying an objective test: if a reasonable person

in defendant’s position would have been aware of the risk involved, then defendant is

presumed to have had such an awareness. [Citation.] However, a finding of implied

malice depends upon a determination that the defendant actually appreciated the risk

involved, i.e., a subjective standard. [Citation.]” (Watson, supra, 30 Cal.3d at pp. 296-

297.) The problem with the instruction, however, was precisely that it did not explain the

difference between gross negligence and implied malice, in the way that this quotation

from Watson does explain it.

CALCRIM No. 520 adequately conveyed the same concept without referring to

gross negligence. It stated that defendant had to have “kn[own] his act was dangerous to

human life.” He also had to have “deliberately acted with conscious disregard for life.”

This formulation necessarily meant that the jury had to decide what defendant’s actual

mental state was; it was not sufficient that a reasonable person would have known that

the act was dangerous to human life, if defendant did not.

Defendant notes that he was not entitled to instructions on involuntary or vehicular

manslaughter as lesser included offenses. (See Pen. Code, § 192, subd. (b); People v.

Bettasso (2020) 49 Cal.App.5th 1050, 1058; People v. Munoz (2019) 31 Cal.App.5th 143,

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154.) He protests that as a result, in the absence of his proposed instruction, he was

deprived of the ability to argue that his conduct was merely grossly negligent and did not

rise to the level of conscious disregard. The first paragraph of the requested instruction,

however, would not have helped him to argue this, because it did not define gross

negligence.

We also note that defense counsel could and did raise this very argument in

closing. He stated that his client’s conduct “[wa]s the grossest of gross negligence. It

[wa]s not murder.” He identified the only disputed issue as: “When Mr. Garcia started

up that off-ramp, was he conscious in his mind that what he was about to do would more

than likely cause someone’s death?” “It’s not a question of what a reasonable person

would have known. It’s exactly what was in his mind at the time.” CALCRIM No. 520

was a sufficient instructional basis for these arguments.

The second paragraph of the proposed instruction was legally incorrect. As

already mentioned (see part II, ante), the physical component of implied malice is “‘“‘an

act, the natural consequences of which are dangerous to life.’ [Citation.] . . .”’

[Citation.]” (People v. Soto, supra, 4 Cal.5th at p. 974.) The mental component is

“‘“‘know[ledge] that [one’s] conduct endangers the life of another and . . . act[ing] with

conscious disregard for life.’ [Citation.]”’ [Citation.]” (Ibid.) However, there is no

requirement that the defendant must know that his or her conduct is placing another

person “in imminent danger of death.” (See People v. Calderon (2005) 129 Cal.App.4th

1301, 1310 [“An act is dangerous to life, for purposes of implied malice, when there is a

17
high probability it will result in death.”].) Moreover, the reference to “at least one other

person” incorrectly suggests that the danger must be to a particular person, rather than to

the public at large. “Nowhere in its opinion did the Watson court suggest implied malice

requires awareness of life-threatening risk to a particular person.” (People v. Albright

(1985) 173 Cal.App.3d 883, 887.)

The third paragraph once again merely duplicated CALCRIM No. 520, which

already stated that the defendant must have “kn[own] his act was dangerous to human

life” and must have “deliberately acted with conscious disregard for life.”

It follows that the trial court did not err by refusing to give defendant’s requested

instruction.

IV

DISPOSITION

The judgment appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.

We concur:

McKINSTER
J.

RAPHAEL
J.

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