Filed 7/26/21 P. v. Ingram CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C087900
Plaintiff and Respondent, (Super. Ct. No. 62144622)
v.
PHILIP MORRIS INGRAM,
Defendant and Appellant.
Defendant Philip Morris Ingram struck and killed two teenage boys with his
pickup truck while driving under the influence of Ambien. The boys were walking along
the dirt shoulder of Highway 49 in Auburn with another boy when defendant’s truck
veered off the roadway and hit them head-on. Prior to the fatal collision, a short distance
away, defendant sideswiped a parked car and continued driving. He was convicted by
jury of two counts of second degree murder and one count of hit-and-run driving. The
trial court sentenced defendant to serve an indeterminate term of 30 years to life in state
prison.
1
On appeal, defendant contends: (1) the evidence is insufficient to support any of
his convictions in this case; (2) the prosecutor engaged in prejudicial prosecutorial
misconduct by repeatedly misstating evidence; (3) defense counsel provided
constitutionally deficient assistance by failing to adequately (a) rebut the prosecutor’s
misstatements and (b) correct one of the defense expert’s inadvertent exaggeration of
defendant’s Ambien use; and (4) cumulative prejudice requires reversal.
We affirm. As we shall explain, the evidence is sufficient to support each of
defendant’s convictions. The purported misstatements made by the prosecutor occurred
during redirect examination of the prosecution’s toxicology expert and during closing
argument. We conclude defendant’s complaints regarding the prosecutor’s closing
argument are forfeited and, in any event, fail on the merits. His complaint regarding the
prosecutor’s questioning of the toxicologist is preserved for review but also fails. Nor are
we persuaded defendant received constitutionally deficient representation at trial. Having
rejected each of defendant’s contentions, we must also reject his assertion of cumulative
prejudice.
FACTS
On the afternoon of April 3, 2016, three teenage boys (J., N., & T.) were hanging
out at a park in Auburn. J. and T. rode skateboards while N. rode a scooter. Around
5:00 p.m., the boys decided to walk to a coffee shop at the corner of Highway 49 and Dry
Creek Road, a short distance to their north. They left the park through an adjacent
residential neighborhood and then walked northbound along the dirt shoulder of Highway
49’s southbound lanes, facing oncoming traffic as they walked. N. was farthest from the
roadway. J. was closest to the roadway, but still on the dirt shoulder. T. was between the
two. The boys did not make it to the coffee shop. Defendant’s decision to drive while
intoxicated would result in him taking the lives of J. and T., and narrowly missing N.,
leaving the latter boy in a state of confusion and distress on the side of the highway.
2
Before describing the fatal collision, and the hit-and-run accident that preceded it,
we provide some background facts about defendant. He was 62 years old and receiving
disability benefits at the time of the collision. Defendant’s disability resulted from a
work-related fall from a scaffold in 1996. In addition to causing defendant chronic pain,
for which he was prescribed various pain medications over the years, the fall also resulted
in defendant suffering a traumatic brain injury. His doctor noted defendant had some
cognitive impairment that he assumed resulted from the brain injury. Cognitive
assessments performed in 2011 and 2016 indicated a neurocognitive disorder, symptoms
of which included poor verbal communication skills and problems with memory and
concentration. Defendant’s intellectual functioning scored in “the low-average range”
during both assessments.
In addition to pain medication, defendant was also prescribed various medications
for depression and insomnia, among other medical conditions, over the years. The
Ambien that impaired defendant’s driving on the day in question was first prescribed to
him in 2014. Although defendant was instructed to take one 10-milligram pill as needed
for sleep, he initially took two pills at bedtime and was reminded during a subsequent
visit that one pill was the maximum dosage. Other than that, defendant’s doctor testified
that he did not notice any indications that defendant was misusing his medications.
However, Dr. Anna Lembke, the prosecution’s expert in “prescription drug overuse and
addiction,” testified concerning defendant’s prescription refill history, contained in a
Controlled Substance Utilization Review and Evaluation System (CURES) report, and
noted it indicated he was taking more than the prescribed dosage of Ritalin, a stimulant
medication. Dr. Lembke also noted it is common for drug users to combine stimulant
medications with sedatives like Ambien “to augment the high.”
We also note defendant was convicted of driving under the influence (DUI) of
alcohol in 2000 and attended a victim impact panel discussing the dangers of impaired
driving. According to defendant’s testimony, he stopped drinking alcohol about two
3
years before the fatal collision in this case, i.e., about 2014. As mentioned, that was the
same year defendant was first prescribed Ambien. The reason defendant gave up alcohol,
according to his testimony, was that it was a “[w]aste of money.” However, as Dr.
Lembke explained, Ambien “is essentially like alcohol in pill form” when taken at high
dosages: “It’s a very similar kind of intoxicating phenomenon, both subjectively and in
terms of the outward manifestations.” These outward manifestations include: “Slurred
speech, cerebral ataxia, which means an unstable gait, often lilting to one side or another,
having difficulty standing up. That individual would engage in often inappropriate
humor because they’re not entirely aware of . . . appropriate social signals going on in
that moment. That individual would just generally behave in kind of an uninhibited,
somewhat euphoric intoxicated way.”
Returning to the events of April 3, 2016, defendant testified that he got up around
7:00 a.m., made coffee, watched some television, ate breakfast, and took his morning
pills. According to defendant, these morning pills were Prozac, Ibuprofen, and Ritalin.
Later in the morning, defendant went to Target and refilled his prescription for Ambien.
The label on the pill bottle indicated it contained 60 pills. He placed this pill bottle in the
same kitchen cabinet where he kept all of his medications. The prescription came with a
paper containing warnings, including “avoid driving and doing other tasks or actions that
call [for] you to be alert.” Defendant then took a walk, ate lunch, and took his afternoon
pills. According to defendant, these afternoon pills were Ritalin, Motrin, and a blood
pressure medication. Defendant testified that he had no memory of taking any Ambien
that afternoon. In actuality, defendant took at least one, and as many as five, Ambien at
some point during the afternoon.
At 4:19 p.m., defendant sent a text message to his son saying he was “[c]oming
over.” Around 5:00 p.m., while intoxicated by the Ambien in his system, defendant left
his house on Northpark Place and got into his truck. From his house, defendant drove
onto Parkway Drive and then turned onto Dry Creek Road without stopping for the stop
4
sign at that intersection, drawing the attention of another motorist who had just passed
through the intersection. This motorist kept an eye on defendant’s truck in his rearview
mirror and saw the truck drive outside of the lane on the right shoulder, then overcorrect
and cross into the oncoming lane of travel, then overcorrect again and sideswipe a parked
car on the right side of the road. Realizing he was in danger with defendant’s truck
driving erratically behind him, the motorist pulled into a parking lot just before the
intersection of Dry Creek Road and Highway 49.
Defendant continued to Highway 49 and turned left, passing another motorist on
the right as he did so. This motorist changed lanes to get behind defendant’s truck and
noticed he was drifting towards the shoulder on the right of the highway. As defendant
approached J., N., and T. a short distance down Highway 49, at the start of a slight left-
hand curve in the road, defendant was unable to properly negotiate the curve. His truck
veered onto the dirt shoulder where the boys were walking and struck J. and T. head-on.
J. sustained the more direct hit and was thrown about 60 feet through the air and slid
across the ground for about another 120 feet. T. was hit by the truck’s right front corner
and was thrown about 40 feet through the air and slid across the ground for about another
10 feet. The boys died as a result of the collision.
An analysis of the collision site performed by an expert in traffic accident
reconstruction suggested that defendant saw the boys before he hit them. This is because
defendant’s truck began a sharp correction to the left 77 feet from where the truck went
off of the road. This correction occurred 26 feet after he hit the boys. However, based on
the speed of the truck (between 57 & 59 miles per hour) and an analysis of perception-
response time, the expert opined that the collision itself could not have initiated
defendant’s sharp steer to the left. In other words, defendant must have perceived the
need to steer to the left prior to hitting the boys, but he was unable to begin the movement
of steering until after it was too late.
5
After the fatal collision, defendant’s truck traveled across both southbound and
northbound lanes of Highway 49 and came to rest on the other side of the highway. N.,
who avoided being struck by mere inches, was left on the southbound side of the highway
in a state of shock and confusion. A nurse who witnessed the collision pulled over
immediately, handed N. her cell phone to call 911, and attempted cardiopulmonary
resuscitation (CPR) on either J. or T. The boy was not breathing and had no pulse. After
N. dialed 911, the nurse spoke to the emergency operator and told N. to walk away
because she “didn’t want him to watch his friend die.” Various other motorists who saw
the collision also called 911.
Law enforcement and emergency medical personnel arrived on scene within
minutes. Deputies Scott Byers and Jeffrey Emery of the Placer County Sheriff’s
Department were among the first to arrive. They initially approached defendant, who
was standing outside his truck drinking a bottle of Listerine mouthwash. Deputy Emery
contacted defendant while Deputy Byers reached into the truck, took the keys from the
ignition, and then crossed the highway to check on the victims. Emery asked defendant
why he was drinking the mouthwash. Defendant said he was a smoker. Emery also
asked defendant whether he needed medical attention. Defendant said he did not and
started reaching into the truck. When the deputy told him to stop, defendant said he was
looking for his driver’s license. It was at this point that Emery noticed defendant “was
swaying and stumbling” and his speech was “slurred.” When the deputy asked what
happened, defendant answered: “Well as soon as I looked up he was comin’ out of the
road on the two-wheelers. [¶] . . . [¶] . . . And, uh, I didn’t see him . . . [¶] . . . [¶] . . .
knocked him down. I hope he’s, okay. I hope he is.” A short time later, Emery asked
whether defendant knew who “hit the kid,” to which defendant responded, “Well I did,”
and claimed the boy came into the road on a scooter from under one of the guard rails on
the side of the highway, adding: “I don’t know if he’s showin’ off for his buddies or
what.”
6
Suspecting defendant had been driving under the influence of alcohol, Deputy
Emery performed an initial DUI assessment and detained him in handcuffs before
ultimately turning him over to Officer Patrick Henley of the California Highway Patrol
(CHP), who arrived a short time later. Defendant asked Officer Henley why he was
being arrested. Henley described his speech as “very slurred” and testified that he
“appeared like he was falling asleep on his feet.” Because defendant was unstable on his
feet, Henley assisted him to his patrol car and performed a more thorough DUI
assessment. Defendant failed the field sobriety tests performed by the officer and was
placed under arrest.
Officer Henley did not handcuff defendant during his transport to the Auburn CHP
office so that he would have the ability to use his cell phone in the back of the patrol car.
Defendant did so, calling his son. During the call, Henley overheard defendant say that
he hit a kid on a skateboard who rode out in front of him.
Because defendant refused to consent to a chemical test of his blood, a warrant
was sought and obtained, and a sample of his blood was taken at 9:37 p.m., more than
four hours after the collision. The amount of Ambien in defendant’s blood was 0.26
milligrams per liter. A toxicology expert testified that a level of 0.05 milligrams per liter
or higher would significantly affect a person’s ability to drive. The expert also opined
that one Ambien pill taken just before defendant got behind the wheel reasonably could
have resulted in a level of 0.26 milligrams per liter when his blood was drawn. However,
if the Ambien was taken earlier in the day, one pill would not have resulted in so high a
level in defendant’s blood at 9:37 p.m. Assuming five pills were taken at noon, the
expert opined a level of 0.26 milligrams per liter “may be in the ballpark” of the level he
would expect to see at the time of the blood draw assuming another medication defendant
was taking was not affecting his body’s ability to eliminate the Ambien. Thus, defendant
either took one Ambien just before driving or he took between two and five pills earlier
in the afternoon.
7
Defendant was searched when he was booked into the jail and two prescription
pills were found in his pants pocket. The record does not reveal whether either pill was
Ambien, but it does indicate the pills were different medications. As previously
mentioned, the Ambien prescription bottle defendant picked up the morning of the
collision contained 60 pills. However, during a search of defendant’s house, law
enforcement found the bottle contained 54 pills. No loose Ambien pills were found in
defendant’s house or his truck. Thus, of the six Ambien missing from the prescription
bottle, it is possible one was in defendant’s pocket, leaving five unaccounted-for pills.1
We also note defendant had a roommate at the time of these events. He denied taking
any of defendant’s prescription medication at any time.
Relevant portions of the evidence adduced by the defense will be set forth in
greater detail in the discussion portion of the opinion, to which we turn momentarily. For
present purposes, it will suffice to note the defense position was that defendant did not
intentionally take any Ambien on the day of the fatal collision. As mentioned, defendant
denied any memory of taking Ambien that day. Thus, he must have done so accidentally,
believing he was taking one of his afternoon medications. He also claimed to have no
memory of driving anywhere that afternoon or early evening, no memory of hitting either
a parked car or two teenagers, and no memory of performing any field sobriety tests.
That purported lack of memory, along with testimony from defense experts in forensic
toxicology and accident reconstruction, supported the defense argument that defendant
was driving in “an Ambien-induced sleep state.”
1 With respect to the other prescription bottles in defendant’s kitchen cabinet, we
note two of these bottles were empty. One of the empty bottles indicated it originally
contained 45 pills of Dilaudid, a pain medication. The other empty bottle indicated it
originally contained 60 pills of Ritalin.
8
The prosecution’s expert testimony, however, preemptively rebutted any such
conclusion. While Dr. Lembke acknowledged there are “very rare” cases of Ambien-
induced sleep-driving, her review of the CHP video of defendant’s interactions with
Officer Henley, including his performance of the field sobriety tests, caused her to
conclude defendant was not in a sleep state at that point in time. He was intoxicated.
Moreover, his answers to the officer’s questions indicated he both saw the teenagers
before he hit them and remembered hitting them, neither of which he would have been
able to do if he had been unconscious while driving.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support any of his convictions
in this case. He is mistaken.
A.
Standard of Review
The standard of review is well-settled: “When reviewing a challenge to the
sufficiency of the evidence, we ask ‘ “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.” ’ [Citation.] Because the sufficiency
of the evidence is ultimately a legal question, we must examine the record independently
for ‘ “substantial evidence—that is, evidence which is reasonable, credible, and of solid
value” ’ that would support a finding beyond a reasonable doubt. [Citation.]” (People v.
Banks (2015) 61 Cal.4th 788, 804.)
“ ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment, for 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 upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
9
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “The same standard governs in cases
where the prosecution relies primarily on circumstantial evidence. [Citation.] We ‘must
accept logical inferences that the jury might have drawn from the circumstantial
evidence. [Citation.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if
it finds the circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’
[Citation.] Where the circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment’s reversal. [Citation.]” (Id. at pp. 357-
358.)
With this standard of review in mind, we shall now assess the sufficiency of the
evidence supporting each of defendant’s convictions in this case.
B.
Evidence Supporting Defendant’s Murder Convictions
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(Pen. Code, § 187, subd. (a).)2 “[M]alice may be express or implied.” (§ 188, subd. (a).)
Express malice “requires an intent to kill that is ‘unlawful’ because . . . ‘ “there is no
justification, excuse, or mitigation for the killing recognized by the law.” ’ [Citation.]
[¶] Malice is implied when an unlawful killing results from a willful act, the natural and
2 Undesignated statutory references are to the Penal Code.
10
probable consequences of which are dangerous to human life, performed with conscious
disregard for that danger.” (People v. Elmore (2014) 59 Cal.4th 121, 133.)
“A person who, knowing the hazards of [intoxicated] driving, drives a vehicle
while intoxicated and proximately causes the death of another may be convicted of
second degree murder under an implied malice theory. [Citation.] A finding of implied
malice, unlike a finding of gross negligence, ‘depends upon a determination that the
defendant actually appreciated the risk involved, i.e., a subjective standard.’ [Citation.]
‘Even if the act results in a death that is accidental . . . the circumstances surrounding the
act may evince implied malice. [Citations.]’ [Citation.]” (People v. Batchelor (2014)
229 Cal.App.4th 1102, 1112-1113, disapproved on other grounds by People v. Hicks
(2017) 4 Cal.5th 203, 214, fn. 3.)
Here, a rational jury could have concluded that defendant’s previous DUI
conviction and his attendance at a victim impact panel discussing the dangers of impaired
driving provided him with the requisite knowledge of the hazards of driving while
intoxicated. The jury could also have reasonably concluded defendant knowingly and
intentionally ingested an intoxicating amount of Ambien before driving. As stated
previously, the evidence supports a reasonable inference that defendant either took one
Ambien just before getting behind the wheel or he took between two and five Ambien
earlier in the afternoon. Either way, defendant consciously disregarded the danger of
driving while under the influence of the intoxicating substance. Moreover, after getting
behind the wheel, defendant ran a stop sign and sideswiped a parked car. Continuing to
drive after this collision presented a high degree of danger. Thus, even if defendant did
not actually appreciate the risk involved prior to driving, the jury could reasonably have
concluded defendant must have known how dangerous his actions were after he collided
with the parked car.
Nevertheless, defendant argues “the record lacks substantial evidence from which
a jury could find beyond a reasonable doubt that [he] knowingly, purposefully, ingested
11
multiple (or any) Ambien” on the day of the collision. Not so. If defendant took one pill
just before driving, the likelihood that he did so accidentally is vanishingly small.
Indeed, the defense scenario of accidental ingestion is based on the notion that defendant
accidentally took Ambien instead of one of his other afternoon medications, i.e., Ritalin,
Motrin, and a blood pressure medication. This scenario might be plausible had defendant
taken only one Ambien at this time. But the prosecution’s toxicology expert testified that
taking one Ambien around noon would not have resulted in a level of 0.26 milligrams per
liter at 9:37 p.m. Thus, if defendant took the Ambien at this time, he took multiple
Ambien. The jury was not required to accept the suggestion that defendant accidentally
took multiple Ambien instead of multiple separate medications. The more likely
scenario, and one supported by substantial evidence, is that defendant intentionally took
Ambien on the afternoon of the fatal collision, either “to augment the high” of his
stimulant medication (Ritalin) or simply to become intoxicated from the Ambien.
Defendant takes issue with Dr. Lembke’s testimony, calling it “generic” because
she “had not examined [defendant], and she did not opine that he was addicted to
Ambien.” However, one does not need to be addicted to an intoxicating substance in
order to intentionally become intoxicated and then get behind the wheel of a motor
vehicle. Defendant also cites testimony from both the doctor who prescribed him the
Ambien and the defense expert in forensic toxicology, supporting a conclusion that
defendant was taking fewer Ambien during the prescription period than was prescribed
during that period of time. Indeed, defendant observes, he took only 480 Ambien “over
the 628 days [he] had been prescribed Ambien.” While true, defendant was prescribed
one Ambien per day “as needed for sleep.” The fact that defendant did not need one
every night does not mean he did not on occasion take an intoxicating amount of the
substance. The best evidence that defendant did so is the undisputed evidence that the
Ambien prescription bottle defendant picked up on the morning of the fatal collision
contained 60 pills when he picked it up and only 54 pills when his home was searched
12
after his arrest. Even assuming one of the pills found in defendant’s pants pocket was
Ambien, this leaves five unaccounted-for pills. A rational jury could have concluded
defendant took these pills intentionally and not by accident.
Finally, relying on People v. Watson (1981) 30 Cal.3d 290, defendant challenges
the sufficiency of the evidence to establish he took an intoxicating amount of Ambien
knowing he would be driving afterwards. Such reliance is misplaced. In Watson, our
Supreme Court held the evidence supported the prosecution’s decision to charge the
defendant with implied malice murder where he caused a fatal collision while driving
under the influence of alcohol after drinking at a bar.3 The court explained: “Defendant
had consumed enough alcohol to raise his blood alcohol content to a level which would
support a finding that he was legally intoxicated. He had driven his car to the
establishment where he had been drinking, and he must have known that he would have
to drive it later. It also may be presumed that defendant was aware of the hazards of
driving while intoxicated.” (Id. at p. 300.) The court further relied on defendant’s
driving, explaining that he “drove at highly excessive speeds through city streets” and
“nearly collided with a vehicle after running a red light” before he “resumed his
excessive speed” and thereafter caused the fatal collision. (Id. at p. 301.)
Defendant argues the evidence is insufficient to support a finding of implied
malice in this case because “the undisputed evidence show[s] that [he] took the Ambien
at home, after completing his errands, with no plans to go anywhere, and no need to
drive.” Thus, argues defendant, unlike Watson, there is no reasonable inference that he
must have known he would have to drive after taking an intoxicating amount of Ambien.
3 Defendant also presents an argument in his briefing to this court arguing that the
Supreme Court should reconsider this holding. We are not the Supreme Court. Indeed,
as defendant acknowledges, “this court is bound by the settled rule of Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.” We also decline defendant’s
invitation to criticize Watson.
13
However, as the First Appellate District explained in People v. Olivas (1985) 172
Cal.App.3d 984, “nowhere does the opinion in Watson state that all of the factors present
in that case are necessary to a finding of second degree murder.” (Id. at p. 988.) Instead,
“the presence of those factors was sufficient in that case to support a murder conviction.”
(Ibid.) In Olivas, as here, there was no evidence the defendant took an intoxicating
substance “knowing he would subsequently drive,” but that is not required: “The
criminal act underlying vehicular murder is not use of intoxicating substances in
anticipation of driving, but is driving under the influence with conscious disregard for
life.” (Id. at pp. 988-989.) There, a minor collision preceding the fatal collision “was
certainly sufficient to apprise [the defendant] of the risk he was creating.” (Id. at p. 988.)
So too here.
Defendant’s second degree murder convictions are supported by substantial
evidence.
C.
Evidence Supporting Defendant’s Hit-and-run Driving Conviction
“The essential elements of a violation of [Vehicle Code] section 20002,
subdivision (a) are that the defendant: (1) knew he or she was involved in an accident;
(2) knew damage resulted from the accident; and (3) knowingly and willfully left the
scene of the accident (4) without giving the required information to the other driver(s).”
(People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10; People v. Dimacali (2019) 32
Cal.App.5th 822, 829.)
Defendant argues the evidence is insufficient to support the first two elements of
this offense, i.e., that he knew he was involved in an accident causing damage to the
parked car on the side of Dry Creek Road. On the contrary, a rational jury could have
concluded the only way defendant would not have known these things is if he was in fact
asleep at the wheel when he struck the parked car and continued sleep-driving unaware of
the collision. The defense provided evidence in support of such a theory. However, as
14
previously explained, Dr. Lembke’s expert testimony rebutted the defense evidence
regarding Ambien-induced sleep-driving. Although Dr. Lembke did not specifically
testify regarding the likelihood defendant was asleep when he struck the parked car, the
jury could have concluded from her testimony that he was not asleep when he struck and
killed the teenagers on Highway 49 and reasonably inferred that he was also not sleep-
driving a short distance away when he struck the parked car on Dry Creek Road. Simply
put, the evidence supports a finding that defendant was intoxicated both when he hit the
parked car and when he hit the teenagers. And if defendant knew he hit the teenagers, as
he admitted at the scene, the jury could also have concluded he knew he hit the parked
car causing damage.
Defendant’s conviction for hit-and-run driving is supported by substantial
evidence.
II
Prosecutorial Misconduct
Defendant also claims the prosecutor engaged in prejudicial prosecutorial
misconduct by repeatedly misstating evidence. These purported misstatements occurred
during the prosecutor’s redirect examination of the prosecution’s toxicology expert and
during closing argument. We conclude defendant’s complaints regarding the
prosecutor’s closing argument are forfeited and, in any event, fail on the merits. His
complaint regarding the prosecutor’s questioning of the toxicologist is preserved for
review but also fails.
A.
Standard of Review
“Under the federal Constitution, a prosecutor commits reversible misconduct only
if the conduct infects the trial with such ‘ “unfairness as to make the resulting conviction
a denial of due process.” ’ [Citation.] By contrast, our state law requires reversal when a
prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the
15
jury’ [citation] and ‘ “it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct” ’ [citation].” (People v.
Davis (2009) 46 Cal.4th 539, 612.)
“To preserve a misconduct claim for review on appeal, a defendant must make a
timely objection and ask the trial court to admonish the jury to disregard the prosecutor’s
improper remarks or conduct, unless an admonition would not have cured the harm.”
(People v. Davis, supra, 46 Cal.4th at p. 612; People v. Gamache (2010) 48 Cal.4th 347,
370-371.) “A claim will not be deemed forfeited due to the failure to object and to
request an admonition only when ‘an objection would have been futile or an admonition
ineffective.’ [Citation.]” (People v. Thomas (2012) 54 Cal.4th 908, 937.)
B.
Claims Based on the Prosecutor’s Closing Argument
In order to place defendant’s complaints regarding the prosecutor’s closing
argument in context, we first note defendant’s doctor’s testimony and the CURES report
delineating his prescription refill history indicated he had a prescription refill available
for Dilaudid on the date of the fatal collision. For whatever reason, defendant did not
have that prescription filled when he had the Ambien prescription filled that morning. As
mentioned previously, when defendant’s house was searched, his bottle of Dilaudid in his
kitchen cabinet was empty. According to the label on the bottle, it originally contained
45 pills and was dispensed on March 24, 2016, ten days before the fatal collision. The
record does not reveal whether defendant was aware he had a refill available for this
medication.
During the prosecution’s closing argument, the prosecutor argued defendant
intentionally took Ambien in the middle of the day because he was “hooked on powerful
drugs and he had no refills available,” adding “no refills for his Dilaudid, no refills for
Hydrocodone, no refills for Oxycodone. That cabinet that you saw yesterday, no pain
16
pills in it. No pain medications whatsoever. Ambien was the only thing that he had
available to him.”
During the defense closing argument, defense counsel countered this line of
argument: “Prosecution also said that [defendant’s] pain pills had r[u]n out. Well, he
didn’t have any pain pills in his cupboard besides the Motrin, but his prescription had not
actually run out. [Defendant’s doctor] testified there was a Dilaudid prescription
available for pickup at Target on April 3rd of 2016. The same day he filled the Ambien.
[¶] So think to yourselves, if [defendant] wanted to get high or wanted to take an
excessive amount of pills, why would he have not filled the Dilaudid? We know that
Dilaudid is a pain pill. We know that that is the pill that gives you the euphoric effect.
That would be the pill of choice if you wanted to get high.”
In rebuttal, the prosecutor explained his argument that defendant did not have a
prescription for Dilaudid available to be refilled on the day he picked up the Ambien was
based on the empty Dilaudid bottle in defendant’s cabinet. The prosecutor argued: “And
on it, he picked it up [March 24]. There are documents that you’ll be able to see, and on
it, it says, Refills: No. [¶] So no, he didn’t have any refills available. He had no opiates
that he had access to. The only thing that he could get from Target at the time was the
Ambien, and that’s what he got.”
Defendant argues this line of argument improperly mischaracterized the evidence.
However, his defense counsel did not object to any of these purported misstatements.
Defendant has therefore forfeited his claim of prosecutorial misconduct with respect to
them unless an objection would have been futile or an admonition would not have cured
the harm. (People v. Thomas, supra, 54 Cal.4th at p. 937.) Defendant argues an
objection would have been futile because he objected to two other purported
misstatements, the first during the prosecutor’s questioning of the toxicologist (discussed
below) and the second during closing argument (not raised on appeal), and the trial court
overruled these two other objections. We are not persuaded. Where no objection is made
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to specific instances of alleged misconduct, forfeiture will be excused as futile “where
any objection by defense counsel would almost certainly have been overruled.” (People
v. Pitts (1990) 223 Cal.App.3d 606, 692.) This was the case in Pitts because, as the court
explained, “early on in trial, it became abundantly clear that any objections by defense
counsel on the grounds of prosecutorial misconduct would be overruled and requests for
admonitions denied or ignored.” (Ibid.) Such is not the case here. We cannot conclude
that the two unsuccessful objections cited by defendant rendered futile further objection
to separate claimed misstatements by the prosecutor. Nor are we persuaded by
defendant’s argument, relying on Pitts, that additional objection would have served “to
impress upon the jury the damaging force of the misconduct,” such that admonitions
would not have cured the harm. (Ibid.) Defendant has therefore forfeited his claims of
prosecutorial misconduct based on the prosecutor’s closing argument to the jury.4
In any event, we also conclude the claims fail on the merits. “While counsel is
accorded ‘great latitude at argument to urge whatever conclusions counsel believes can
properly be drawn from the evidence [citation],’ counsel may not assume or state facts
not in evidence [citation] or mischaracterize the evidence [citation].” (People v. Valdez
(2004) 32 Cal.4th 73, 133-134.) Viewing the totality of the prosecutor’s remarks, he
4 Defendant also takes issue with a related line of argument made by the prosecutor
during closing argument, i.e., that defendant “has a history of taking more Ambien than
prescribed” and that defendant’s doctor “noted that [he] was taking two times the
prescribed Ambien, not the one pill he had prescribed.” Defendant argues these
statements, “[w]hile technically accurate,” improperly “slanted the facts and unfairly
misled the jury.” This claim is also forfeited for failure to object below. Additionally,
defendant’s appellate briefing does not provide any legal authority supporting his
argument that these “technically accurate” statements nevertheless amounted to
misconduct. “When an appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the point as [forfeited].
[Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We
mention this portion of defendant’s prosecutorial misconduct claims no further.
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argued to the jury that notwithstanding the testimony from defendant’s doctor and the
CURES report, defendant did not have a prescription for Dilaudid available to be filled
on April 3 because he picked up that prescription on March 24 and had no further refills
available. Whether such an inference was a fair one based on the label of the Dilaudid
bottle was for the jury to decide. We simply conclude arguing for it was not a deceptive
or reprehensible method of persuasion and did not infect the trial with such unfairness as
to make the resulting conviction a denial of due process. (See People v. Davis, supra, 46
Cal.4th at p. 612.)
C.
Claim Based on Questioning of the Toxicologist
During redirect examination of the prosecution’s toxicology expert, the prosecutor
asked: “A person who -- assuming that a collision happens at 5:15 p.m., and a person
who is involved in that is arrested. And then there is a phone call several hours later in
which that person who is involved in the collision tells the other party that they remember
everything that happened, is that consistent with someone being in some type of Ambien-
induced sleep state at the time of the original collision?” After defense counsel’s
objection to this question (as an improper hypothetical that referred to facts not in
evidence) was overruled, the toxicologist answered: “That would not be consistent. [¶]
Typically, they have total loss of memory of that event.”
Defendant argues this hypothetical was not based on the evidence because the
phone call upon which the question was based, between defendant and his son, did not
happen “hours later,” but instead took place the day after the collision. We consider the
difference between “several hours later” and “the next day” to be immaterial and
manifestly harmless in light of the toxicologist’s answer that a person in an Ambien-
induced sleep state will typically have a total loss of memory with respect to an event that
occurs during that sleep state. In other words, whether several hours later or the next day,
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the toxicologist would have expected the person described in the hypothetical not to have
remembered the event.
Defendant also takes issue with the portion of the hypothetical indicating the
person remembered “everything that happened,” arguing he never told his son he
remembered everything. Instead, when defendant’s son asked whether he remembered
everything that happened, defendant asked: “What’s that?” His son then asked: “Do
you remember what happened?” Defendant answered: “Yeah - yeah.” His son clarified:
“With your truck and everything?” Defendant answered: “Uh-huh.” A short time later,
defendant told his son he was having difficulty hearing him because the batteries in his
hearing aid had gone out. We also consider the difference between remembering “what
happened” and remembering “everything that happened” to be immaterial and harmless
for the same reason. Stated simply, the toxicologist would have expected a person in an
Ambien-induced sleep state to remember nothing that happened. Defendant told his son
he remembered what happened. Moreover, whether defendant heard his son correctly
was a matter for argument, but his subsequent statement that his hearing aid batteries had
gone out did not make the prosecutor’s hypothetical improper.
Defendant’s claims of prejudicial prosecutorial misconduct fail.
III
Ineffective Assistance of Counsel
Defendant further asserts his trial counsel provided constitutionally deficient
assistance by failing to adequately (a) rebut the prosecutor’s misstatements and (b)
correct the defense expert’s inadvertent exaggeration of defendant’s Ambien use. We are
not persuaded.
A.
Standard of Review
The standard for reviewing a claim of ineffective assistance of counsel is also
well-settled: A criminal defendant has the right to the assistance of counsel under both
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the Sixth Amendment to the United States Constitution and article I, section 15, of the
California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right
“entitles the defendant not to some bare assistance but rather to effective assistance.
[Citations.] Specifically, it entitles him to ‘the reasonably competent assistance of an
attorney acting as his diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden
of proving a claim of ineffective assistance of counsel is squarely upon the defendant.
(People v. Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was “deficient”
because his “representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.” [Citations.] Second, he must also show prejudice
flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” ’ ” (In re Harris (1993)
5 Cal.4th 813, 832-833, disapproved on another point in Shalabi v. City of Fontana (July
12, 2021, S256665) ___ Cal.5th ___ [2021 Cal. Lexis 4762]; Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
With this standard of review in mind, we consider each of defendant’s ineffective
assistance of counsel claims raised in this appeal.
B.
Asserted Failure to Rebut the Prosecutor’s Misstatements
As previously explained, rather than object to the prosecutor’s argument regarding
defendant’s “supposed inability to get more pain medication” on the day of the fatal
collision, defense counsel argued he had a refill for Dilaudid available for pickup that day
and cited the testimony of defendant’s doctor in support of that assertion. Choosing to
argue a matter rather than object to potential prosecutorial misconduct falls within the
realm of tactical decisions that are not subject to second-guessing on appeal. Defense
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counsel “could have decided to refrain from objecting to avoid drawing the jury’s
attention to arguments detrimental to the defense case. [Citation.] The decision whether
to object to an argument is an inherently tactical one that is not ordinarily reviewable on
appeal. [Citations.]” (People v. Henderson (2020) 46 Cal.App.5th 533, 549.)
Defendant acknowledges these principles, but argues his trial counsel nevertheless
provided ineffective assistance by failing to “effectively, thoroughly, and accurately”
argue the matter. According to defendant, his defense attorney’s argument was not
accurate because defendant’s doctor did not testify that a Dilaudid prescription was ready
to be picked up that day. Instead, he testified that he called in the prescription in April,
but was unaware “[w]hether it was available for pickup or not.” The doctor added: “I
know it was prescribed . . . and I know it wasn’t picked up, but I don’t know if it was
sitting at the pharmacy, waiting for him.” However, defendant argues, the prosecution’s
investigator did testify that Dilaudid was ready to be picked up, and “[t]hat is what the
jury needed to hear.” But that is not entirely accurate either. The investigator testified
that his review of the CURES report indicated a Dilaudid prescription was “ready to be
filled” on April 3, but defendant did not have that prescription filled when he had the
Ambien filled. We perceive no material difference between the doctor saying he called
in the prescription but it was never picked up and the investigator saying it was “ready to
be filled” but defendant “did not pick one up.” Both indicate that defendant could have
had his Dilaudid prescription filled that day, assuming he was aware, and neither purport
to know whether or not a bottle of Dilaudid was waiting to be picked up when defendant
arrived at the pharmacy that morning.
We conclude defense counsel’s argument in this regard did not fall below an
objective standard of reasonableness. Nor has defendant demonstrated a “reasonable
probability the outcome would have been different” had his defense counsel directed the
jury’s attention to the investigator’s testimony instead of, or in addition to, that of
defendant’s doctor. (People v. Alexander (2010) 49 Cal.4th 846, 888.)
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C.
Asserted Failure to Correct the Defense Expert’s Misstatement
The defense toxicologist testified that defendant was first prescribed Ambien on
July 16, 2014, and that he was prescribed “about 480 pills” between then and April 3,
2016, adding “that’s about 470 days, so that’s about 1.0 tablets per day.” He further
testified that this level of usage was consistent with the prescribed daily use of the
medication. Defendant points out there are actually 628 days between July 16, 2014, and
April 3, 2016, and argues defense counsel provided constitutionally deficient
representation by failing to catch the error and “ensure that [the expert] testified
accurately.”
We reject this claim based on defendant’s failure to demonstrate prejudice. (See
People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [where “ ‘it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed’ ”].) Defendant argues he has shown such
prejudice because “the entire trial turned on whether [he] had taken multiple Ambien to
get high” and the fact that he in actuality took less than one pill per day over the span of
almost two years “would have undercut the prosecution’s suggestion that he was abusing
Ambien to get high.” Defendant also argues the prosecutor exacerbated the prejudice by
repeating the defense toxicologist’s “inadvertent exaggeration” during closing argument.
We are not persuaded.
“ ‘A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not simply
speculation.” ’ [Citation.] Thus, it is not sufficient to show that the alleged errors may
have had some conceivable effect on the trial’s outcome. Instead, a defendant must
demonstrate a ‘reasonable probability’ that the result would have been different were it
not for the deficient performance. [Citation.] ‘ “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” ’ [Citation.]” (People v. Henderson,
supra, 46 Cal.App.5th at pp. 549-550.)
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Even accepting that defendant took “an average of .76 tablets a day,” as we have
already explained, he was prescribed one Ambien per day “as needed for sleep.” The fact
that defendant did not need one every night does not mean he did not on occasion take an
intoxicating amount of the substance. The best evidence that defendant did so is the
undisputed evidence that the Ambien prescription bottle defendant picked up on the
morning of the fatal collision contained 60 pills when he picked it up and only 54 pills
when his home was searched after his arrest. Even assuming one of the pills found in
defendant’s pants pocket was Ambien, this leaves five unaccounted-for pills. Based on
all of the evidence, the jury concluded defendant intentionally took an intoxicating
amount of Ambien before driving in conscious disregard of the danger this action
presented to human life. Our confidence in the outcome is not undermined by defense
counsel’s failure to correct the defense toxicologist’s inadvertent miscalculation
regarding defendant’s average Ambien usage.
Defendant’s claims of ineffective assistance of counsel fail.
IV
Cumulative Prejudice
Finally, having rejected each of defendant’s contentions in this appeal, we must
also reject his assertion of cumulative prejudice.
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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
MURRAY, Acting P. J.
/s/
DUARTE, J.
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