Filed 10/26/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LAURO LOPEZ,

Defendant and Appellant.

 B282867

 (Los Angeles County

 Super. Ct. No. BA440645)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed 

in part; reversed and remanded in part with instructions.

Waldemar D. Halka, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Yun K. Lee and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.

*Pursuant to California Rules of Court, rules 8.1100 and 8.1110, 

this opinion is certified for publication with the exceptions of 

parts I, II, and IV of the Discussion section. 
2

INTRODUCTION

While driving under the influence of alcohol, appellant 

Lauro Lopez made a left turn in front of an oncoming motorcycle, 

hitting and killing the rider. A jury convicted appellant of second 

degree murder and felony hit and run driving resulting in death 

or serious injury.

Appellant challenges his conviction in several ways. First, 

he argues that the trial court erred by admitting evidence of the 

advisement he received after a prior conviction for driving under 

the influence. Second, appellant raises several claims of error 

related to the jury instructions. Third, he contends his conviction 

on both counts must be overturned due to his counsel’s concession 

at trial that appellant committed the hit and run, coupled with 

the absence of affirmative evidence that he knowingly waived his 

constitutional trial rights. Finally, he asserts cumulative error 

and sentencing error. 

We conclude that defense counsel’s statements during 

argument were tantamount to a guilty plea on the hit and run 

offense. Moreover, the record is silent as to whether appellant 

gave informed consent to waive his right to trial on this count.

Under these circumstances and applying recent case law from the 

United States and the California Supreme Courts, we reverse the 

conviction on the hit and run charge. We otherwise affirm. 

PROCEDURAL HISTORY

The Los Angeles County District Attorney charged 

appellant in an information with one count of second degree 
3

murder (Pen. Code, § 187, subd. (a); count one)1 and one count of 

felony hit and run driving resulting in death or serious injury to 

another person (Veh. Code, § 20001, subd. (b)(2); count two). 

Appellant pled not guilty to both counts and the matter 

proceeded to jury trial. 

The jury found appellant guilty on both counts. The court 

sentenced appellant to 15 years to life on the murder charge and 

three years on the hit and run charge, to run consecutively. 

Appellant timely appealed. 

FACTUAL BACKGROUND

The following evidence was adduced at trial.

I. Prosecution Evidence

A. 2013 drunk driving conviction 

Appellant was previously arrested for driving under the 

influence on January 7, 2013. He pled no contest to driving 

under the influence with a blood alcohol content of .08 percent or 

higher in violation of Vehicle Code section 23152, subdivision (b), 

and admitted as part of his plea that his blood alcohol level was 

actually .20 percent or higher. Before entering his plea, 

appellant signed a written advisement, which was also read to 

him by a Spanish interpreter. It included the following Watson2

advisement: “I understand that being under the influence of 

alcohol or drugs or both impairs my ability to safely operate a 

motor vehicle. Therefore, it is extremely dangerous to human life 

to drive while under the influence of alcohol or drugs or both. If I 

continue to drive while under the influence of alcohol or drugs or 

both, and as a result of my driving someone is killed, I can be 

1All further statutory references herein are to the Penal 

Code unless otherwise indicated.

2People v. Watson (1981) 30 Cal.3d 290 (Watson).
4

charged with murder.” In addition, during the plea hearing, the 

judge repeated the Watson advisement. 

The terms of appellant’s plea required him to complete a 

nine-month alcohol education program and a Mothers Against 

Drunk Driving (MADD) victim impact program, and barred him 

from driving without a valid driver’s license or with any 

measurable amount of alcohol in his system. Appellant was 

placed on probation for three years. 

Pursuant to the terms of his plea, appellant completed a 

nine-month alcohol program starting in February 2013. The 

program, given in Spanish, included 23 group sessions, six 

alcoholic education sessions, 10 interviews, and 19 Alcoholics 

Anonymous meetings. Upon completion, appellant filled out an 

exit form stating that he would not drink and drive. 

In November 2013, appellant also attended a victim impact 

panel, an educational program for driving under the influence 

(DUI) offenders. He registered for and completed the course in 

English. As part of the program, the administrator testified that 

she discussed the Watson advisement with the participants and 

projected the text on a big screen. She would customarily tell the 

story of another class participant who attended the class twice 

and later caused an accident that killed two people. 

B. 2015 accident

On October 13, 2015 at approximately 7:15 p.m., appellant 

approached the intersection of Soto Street and 57th Street in 

Huntington Park. He was driving his white pickup truck and his 

29-year-old son was in the passenger seat. Appellant made a left 

turn onto 57th Street in front of an oncoming motorcycle. He 

struck the motorcycle, knocking its rider to the ground. 

Appellant then drove away from the scene. 
5

A bystander called 911, reporting that “a guy came, took a 

left. And nailed a woman or man on a motorcycle.” He described 

the vehicle as a white truck and told the operator where the truck 

was heading. The 911 call was played for the jury at trial. 

Detective Garey Staal of the Huntington Park Police 

Department (HPPD) testified that he and his partner saw the 

motorcycle driving on Soto Street before the accident. The 

motorcycle was travelling a “little faster than the normal traffic 

but . . . nothing that was concerning as far as speed.” They came 

upon the scene of the accident and saw the same motorcycle on 

the ground. Detective Staal ran toward the victim on the ground 

and began performing CPR, assisted by others at the scene. 

Paramedics arrived less than five minutes later. The victim was 

transported to the hospital and died shortly thereafter from his 

injuries. 

Staal and his partner gathered a description of the suspect 

vehicle and its direction of travel from witnesses at the scene; 

they broadcast that information over their police radio. The 

detectives also noticed a license plate lying in the street, which 

appeared to be the front license plate from the suspect vehicle. 

Staal’s partner wrote down the license plate number and gave it 

to police dispatch; dispatch advised him that the vehicle with 

that plate number was registered to appellant. 

A short time later, a police officer who had heard the 

collision and then heard about the suspect over the police radio 

spotted appellant’s truck parked in a nearby business parking lot. 

As the officer walked over to the truck, he noticed appellant and 

his son standing in a yard next to the vehicle. The officer 

approached and asked in Spanish if either of them was driving 

the pickup truck. The officer testified at trial that in response, 
6

appellant pointed to his son, who shook his head no. The officer 

then called for assistance. 

HPPD officer Martin Magallanes arrived a few moments 

later. He noted that the front license plate on appellant’s truck 

was missing and the rear plate matched the number from the 

plate at the scene. He spoke to appellant in Spanish and testified 

that he could smell alcohol on appellant’s breath. Appellant 

acknowledged to Magallanes that he had consumed three 24-

ounce beers between 5:00 and 6:00 p.m. He stated he did not feel 

the effects of the alcohol, but Magallanes noticed appellant 

swaying. Appellant also admitted he had been driving. He told 

Magallanes that his truck did not have any mechanical problems 

and he knew he had collided with a motorcycle. He did not ask 

about the condition of the rider. 

Magallanes administered a field sobriety test to appellant, 

which indicated appellant was impaired. Appellant was also 

given two breath tests, one at 8:10 and one at 8:12 p.m.; both 

showed his blood alcohol content was 0.14 percent. That result 

was confirmed by a blood draw taken at 8:30 p.m.3 Appellant 

was arrested. 

Magallanes interviewed appellant in jail that evening 

around 10:00 p.m. Appellant agreed he had “too many beers” and 

knew driving after drinking was a crime. He said he had one 

beer at work, then went to the liquor store to get beer, drove 

home, and drank “two big Modelos” at home. He told Magallanes 

3A prosecution expert opined that any driver would be 

impaired at the level of .08 percent or above. Given a 

hypothetical scenario matching the facts of the case, he also 

opined that the driver’s blood alcohol content at the time of the 

accident would be between 0.14 and 0.16 percent. 
7

that he was not planning to leave his house that night, but he 

decided to drive his son to a friend’s house to see about a job. At 

the time of the accident, he saw the motorcycle approaching but 

thought he would be able to make the left turn safely before the 

collision. He did not see the motorcyclist after the crash. 

Appellant then left the scene because he was scared he would get 

arrested because he had been drinking. His son told him to 

remain at the scene. Appellant also stated he was not planning 

to report the collision that night because he was intoxicated. 

HPPD detective Osvaldo Cervantes interviewed appellant 

on October 14, 2015. Excerpts from the video of that interview 

were played for the jury. Appellant reiterated that he drank 

three 24-ounce Modelo beers, finishing about an hour before the 

accident. When asked if he thought he was drunk, appellant 

responded, “Well, on the one hand, yes, but on the other hand I 

think - yes, I was a little. I’m not going to say no. But . . . my kid 

was going . . . and I thought it easier that I take the truck rather 

than him.” The detectives also asked why appellant drove if he 

knew he was drunk. He responded, “that was my mistake.” He 

said the admonition he received with his prior conviction was 

that “I wasn’t to drive again with alcohol” and knew he couldn’t 

drive for three years. He also knew he was still on probation 

from his prior conviction. 

Appellant told the detectives that he was “going to make a 

left turn” and claimed he saw the other driver “coming at a high 

velocity on his motorcycle. But, there were no cars. He came 

hard.” Appellant thought he was going to be able to turn in front 

of the motorcycle, but they collided. His son said “Wait Dad!” 

before the turn, but appellant went ahead because he thought he 

could beat the motorcycle. After he felt the crash, appellant 
8

reversed his truck to move away from the accident and then left 

the scene because he was scared. He claimed he did not see the 

condition of the motorcyclist and did not see him on the ground. 

His son wanted to get out and check on the victim, but appellant 

did not stop. 

Appellant admitted to the detectives that he thought the 

victim was hurt and he “came out of it badly.” Before they 

advised appellant that the victim had died, the detectives asked 

appellant if he wanted to know how serious the victim’s injuries 

were. Appellant responded, “If you want to tell me.” He later 

stated that he was sorry but that it was also the victim’s fault 

because he (the victim) was driving so fast. 

II. Defense evidence

The defense did not call any witnesses and appellant did 

not testify. 

DISCUSSION

I. Admission of Watson Advisements

At trial, the prosecution proffered evidence of the Watson

advisements appellant received prior to the 2015 collision, 

including the written and oral plea advisements from his 2013 

DUI plea and the subsequent coursework appellant completed as 

part of that plea. Prior to trial, the parties and the court

acknowledged the relevance and importance of this evidence to 

establish that appellant knew of the dangers of drinking and 

driving prior to the collision, and therefore acted with the implied 

malice required for murder.4 Appellant now contends this 

4Murder is “the unlawful killing of a human being . . . with 

malice aforethought.” (§ 187, subd. (a).) Malice may be express 

or implied. (§ 188.) The jury here was instructed with CALCRIM 

No. 520, which provides that the defendant acted with implied 
9

evidence was admitted in error for two reasons. First, he argues 

that by admitting a statement from the prior court that it was 

“required” to give the Watson advisement as part of the plea, the 

trial court here “created a conclusive presumption” that “as a 

matter of law, driving under the influence ‘is extremely 

dangerous to human life,” thereby directing a verdict on the 

physical component of implied malice. Second, he contends the

Watson advisements admitted at trial were inadmissible hearsay. 

Respondent counters that both claims are forfeited as appellant 

failed to raise them below. We agree that these arguments are 

forfeited.

Generally, failure to object to the admission of evidence at 

trial forfeits an appellate claim that such evidence was 

improperly admitted. (See Evid. Code, § 353, subd. (a); People v. 

Partida (2005) 37 Cal.4th 428, 435 [defendant on appeal “may not 

argue that the court should have excluded the evidence for a 

reason different from his trial objection”]; People v. Stevens (2015) 

62 Cal.4th 325, 333 [forfeiture of objection to hearsay evidence].) 

The purpose of requiring a specific objection is to “alert the trial 

court to the nature of the anticipated evidence and the basis on 

which exclusion is sought, and to afford the People an 

opportunity to establish its admissibility.” (People v. Williams

(1988) 44 Cal.3d 883, 906.) 

Here, appellant failed to object below to the admission of 

the Watson advisements on either ground he now asserts. He did 

 

malice if: “(1) He intentionally committed an act; (2) The natural 

and probable consequences of the act were dangerous to human 

life; (3) At the time he acted, he knew his act was dangerous to 

human life; and (4) He deliberately acted with conscious 

disregard for human life.” (See also Watson, supra, 30 Cal.3d at 

p. 295.)
10

object prior to trial to the prosecutor’s request to admit the 

underlying facts of the prior DUI. He also objected during trial to 

the admission of the plea waiver form, on the basis that it was 

unclear whether appellant had initialed the Watson advisement 

on the form.5 He raised no other objections to admission of any of 

the Watson advisement evidence. 

Moreover, appellant did not object as both the prosecutor 

and the court repeatedly stressed the significance of the Watson

advisements to the issue of appellant’s intent. For example, at a 

pretrial evidentiary hearing, the court denied the prosecutor’s 

request to admit the underlying facts of the prior DUI, but 

admitted evidence of the plea, advisements, and subsequent 

education. In doing so, the court noted: “This is a Watson

murder . . . because of the specific education and knowledge that 

[appellant] obtained through the Watson advisement, through the 

attendance at the AA meetings and the M.A.D.D. presentation, 

and all of that. And in the absence of that . . . without the 

evidence of the advisement and the education . . . the prosecution 

would not have filed a Watson murder in this case.” The court 

therefore ruled that the prior conviction was admissible and “all 

of the educational aspects and advisements are in.” During that 

hearing, the prosecutor argued that the “central issue in this case 

is going to be intent; that being implied malice and knowledge of 

the dangers of driving under the influence resulting in death to 

another.” Defense counsel acknowledged that a lot “of evidence 

about what Mr. Lopez learned after his arrest [in 2013] is going 

to come in,” and objected only to the admission of the underlying 

facts of the DUI.

5In his reply brief, appellant cites only this objection in 

response to respondent’s forfeiture argument. 
11

Similarly, when defense counsel objected during trial 

regarding the unclear initials on the plea waiver, the prosecutor 

again argued that the evidence “goes to the central issue” of 

defendant’s knowledge regarding drinking and driving. The 

court overruled appellant’s objection. Had appellant objected 

below on the grounds he now asserts, the trial court could have 

addressed the asserted errors and the prosecution would have 

had the chance to cure them. For example, with respect to 

appellant’s claim that the court created a conclusive 

presumption, the prosecution could have omitted the court’s 

prefatory statement that “I’m required to advise you” from the 

evidence of the plea. Similarly, with respect to the hearsay 

objection, the prosecutor could have sought to admit the 

advisements through an appropriate witness or stipulation. 

Appellant also argues that these objections would have 

been futile. The record does not support this claim. First, 

regarding his conclusive presumption claim, he suggests that 

once the trial court overruled his objection regarding the initials 

on the plea waiver form, “any other Watson advisement objection 

would have been futile.” He does not explain why he would have 

been unable to object to the same evidence on different grounds. 

Second, with respect to the hearsay objection, appellant

acknowledges that the primary case upon which he relies, People 

v. Sanchez (2016) 63 Cal.4th 665, was issued almost a year before 

his trial. As such, he is not entitled to rely on the rule that an 

objection is not required when it “is based on a change in the law 

that the appellant could not reasonably have been expected to 

foresee.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 

1334.)
12

Finally, appellant contends that his assertion of a due 

process violation flowing from the purported conclusive 

presumption has not been forfeited. But the cases appellant cites 

apply only to a narrow subset of due process arguments that may 

be raised for the first time on appeal. Where new arguments “do 

not invoke facts or legal standards different from those the trial 

court itself was asked to apply, but merely assert that the trial 

court’s act or omission, insofar as wrong for the reasons actually 

presented to that court, had the additional legal consequence of 

violating the Constitution,” then to that limited extent, 

“defendant’s new constitutional arguments are not forfeited on 

appeal.” (People v. Ervine (2009) 47 Cal.4th 745, 771, fn. 12; 

accord People v. Partida, supra, 37 Cal.4th at p. 435.) This 

exception to forfeiture does not apply here. Appellant has not 

merely applied a due process gloss to objections he raised below. 

Instead, he has raised entirely new objections and included a due 

process claim. Under these circumstances, appellant has 

forfeited his objections to the Watson advisements.

II. Jury Instructions

Appellant raises three separate claims of instructional 

error related to his murder conviction. First, he asserts that the 

trial court incorrectly instructed the jury on the definition of 

implied malice. Second, he argues the court had a sua sponte 

duty to give a unanimity instruction as to the two separate acts 

that could have served as the basis for a murder conviction. 

Finally, he claims the trial court erred in refusing to instruct on 

lesser included offenses. We review such claims de novo. (See 

People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Waidla

(2000) 22 Cal.4th 690, 739 [de novo review of failure to instruct 

on lesser-included offense].) 
13

A. Definition of implied malice

Appellant challenges the court’s instruction to the jury on 

implied malice. The trial court instructed the jury with 

CALCRIM No. 520, which provides, in pertinent part, that a 

defendant acted with implied malice if he or she committed an 

act and the “natural and probable consequences of the act were 

dangerous to human life.” Appellant did not object to this portion 

of the instruction at trial. 

Our Supreme Court has explained that two lines of 

decisions have developed reflecting judicial attempts to 

“‘translate this amorphous anatomical characterization of implied 

malice into a tangible standard a jury can apply.’” (People v. 

Nieto Benitez (1992) 4 Cal.4th 91, 103 (Nieto Benitez).) As a 

result, the physical component of implied malice can be phrased 

in two ways. (Id. at pp. 103-104; People v. Watson, supra, 30 

Cal.3d at p. 300.) In one formulation, implied malice exists when 

a person commits “an act, the natural consequences of which are 

dangerous to life.” (Nieto Benitez, supra, 4 Cal.4th at p. 104.) In 

the alternate formulation, malice may be implied when a person 

“does an act with a high probability that it will result in death.” 

(Ibid., citing People v. Thomas (1953) 41 Cal.2d 470, 480

(Thomas).)

Appellant contends the trial court erred by failing to 

instruct the jury with the Thomas formulation of implied malice

“at a minimum”: that the defendant commit an act “with a high 

probability that it will result in death.” This argument has been 

squarely rejected by our Supreme Court, which has consistently 

upheld the formulation reflected in CALCRIM No. 520 and given 

here. For example, in Nieto Benitez, supra, 4 Cal.4th at p. 111, 

the court rejected the argument that the standard implied malice 
14

instruction was faulty because it did not state “a requirement 

that [the] defendant commit the act with a high probability that 

death will result.” The Nieto Benitez court confirmed that the 

instruction stated an “equivalent” standard by requiring that the 

defendant commit “an act whose ‘natural consequences’ are 

dangerous to life.” (Ibid.; see also People v. Dellinger (1989) 49 

Cal.3d 1212, 1219 [the two definitions of implied malice state 

“one and the same standard”]; Watson, supra, 30 Cal.3d at p. 

300.) 

We are bound to follow these Supreme Court decisions 

upholding the use of CALCRIM No. 520. (Auto Equity Sales, Inc. 

v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject 

appellant’s argument that the high court’s conclusion that the 

two standards are one and the same “does violence to the 

meaning of ordinary definitions of words.” The trial court’s 

instruction here was consistent with the controlling authorities; 

thus, we find no error in its usage.

B. Unanimity instruction

Appellant contends that the trial court erred in failing to 

give a unanimity instruction to the jury. Specifically, he claims 

that because the evidence established “two separate and distinct 

acts of driving under the influence”—first, appellant’s driving 

from his home and causing the accident, and second, his driving 

away from the accident, refusing to stop, and failing to render 

aid—the jury could have found him guilty of murder based on 

either act, and may not have unanimously agreed as to one of 

them. We conclude no unanimity instruction was required.

A jury verdict must be unanimous in a criminal case. 

(People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, “[w]hen an 

accusatory pleading charges the defendant with a single criminal 
15

act, and the evidence presented at trial tends to show more than 

one such unlawful act, either the prosecution must elect the 

specific act relied upon to prove the charge to the jury, or the 

court must instruct the jury that it must unanimously agree that 

the defendant committed the same specific criminal act.” (People 

v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity 

requirement “‘is intended to eliminate the danger that the 

defendant will be convicted even though there is no single offense 

which all the jurors agree the defendant committed.’ [Citation.]” 

(People v. Russo, supra, 25 Cal.4th at p. 1132.) Where required, a 

unanimity instruction must be given sua sponte. (People v. 

Dieguez (2001) 89 Cal.App.4th 266, 274–275.)

As we discuss further in section III.C. post, there was 

insufficient evidence in the record from which the jury could have 

found appellant guilty of second degree murder based on his postaccident conduct alone. (See People v. Burns (1987) 196 

Cal.App.3d 1440, 1458 [“‘If under the evidence presented such 

disagreement is not reasonably possible, the instruction is 

unnecessary.’”].) Neither party suggested otherwise during trial. 

Moreover, appellant cites no authority supporting his contention 

that his flight after the collision and failure to assist the victim 

could meet the elements for murder. His citations to cases 

involving unanimity instructions for other crimes are inapposite. 

(See People v. Crawford (1982) 131 Cal.App.3d 591 [possession of 

multiple firearms]; People v. Scofield (1928) 203 Cal. 703, 709-710 

[five different ways to violate hit and run statute]; People v. 

McNeill (1980) 112 Cal.App.3d 330, 335 [four similar acts of 

assault on different victims].)

Thus, because it was not reasonably possible that the jury 

disagreed as to what conduct supported a finding of murder, no 
16

unanimity instruction was necessary. (See, e.g., People v. Brown

(1991) 234 Cal.App.3d 918, 935 [“a unanimity instruction is 

unnecessary ‘unless there is evidence based on which reasonable 

jurors could disagree as to which act the defendant committed’ 

[citation]”].)

C. Lesser included offenses

Appellant requested jury instructions on the following 

lesser included offenses to murder: vehicular manslaughter 

(§ 192, subd. (c)), vehicular manslaughter while intoxicated 

(§ 191.5, subd. (b)), and gross vehicular manslaughter while 

intoxicated (§ 191.5, subd. (a).) The prosecution objected and the 

trial court denied the request, finding that those crimes were not 

lesser included offenses as they did not share all the elements of 

second degree murder; thus, the court had no authority to give 

them without the prosecutor’s consent. Appellant contends this 

was error. We disagree.

Generally, when a defendant is charged with a crime, the 

trial court must instruct the jury on any lesser included offenses 

that are supported by the evidence. (People v. Breverman (1998) 

19 Cal.4th 142, 154.) “Under California law, a lesser offense is 

necessarily included in a greater offense if either the statutory 

elements of the greater offense, or the facts actually alleged in 

the accusatory pleading, include all the elements of the lesser 

offense, such that the greater cannot be committed without also 

committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 

117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.) 

Conversely, “California law does not permit a court to instruct on 

an uncharged lesser-related crime unless agreed to by the 

prosecution.” (People v. Valentine (2006) 143 Cal.App.4th 1383, 
17

1387 (emphasis added), citing People v. Birks, supra, 19 Cal.4th 

at p. 136.)

In a second-degree murder charge, “Malice is implied when 

an unlawful killing results from a willful act, the natural and 

probable consequences of which are dangerous to human life, 

performed with conscious disregard for that danger.” (People v. 

Elmore (2014) 59 Cal.4th 121, 133.) In contrast, manslaughter is 

“the unlawful killing of a human being without malice.” (§ 192, 

subd. (b).) Vehicular manslaughter is a specific type of 

manslaughter, involving “driving a vehicle in the commission of 

an unlawful act, not amounting to a felony [and with/without] 

gross negligence; or driving a vehicle in the commission of a 

lawful act which might produce death, in an unlawful manner, 

[and with/without] gross negligence.” (§ 192, subd. (c).) Gross 

vehicular manslaughter while intoxicated is “the unlawful killing 

of a human being without malice . . . in the driving of a vehicle, 

where the driving was in violation of [DUI laws], and the killing 

was either the proximate result of the commission of an unlawful 

act, not amounting to a felony, and with gross negligence, or the 

proximate result of the commission of a lawful act that might 

produce death, in an unlawful manner, and with gross 

negligence.” (§ 191.5, subd. (a).) Vehicular manslaughter while 

intoxicated is the same act, without gross negligence. (§ 191.5, 

subd. (b).)

Numerous courts have rejected the argument raised by 

appellant here, that vehicular manslaughter, vehicular 

manslaughter while intoxicated, and gross vehicular 

manslaughter while intoxicated are lesser included offenses to 

second degree murder. In People v. Sanchez (2001) 24 Cal.4th 

983, 990, overruled on another point in People v. Reed (2006) 38 
18

Cal.4th 1224, 1228-1229, the Supreme Court considered whether 

“the settled practice of treating manslaughter as an offense 

necessarily included within murder should be extended” to 

vehicular manslaughter crimes. The defendant was convicted of 

murder and gross vehicular manslaughter while intoxicated; he 

argued that the vehicular manslaughter charge was necessarily 

included within the murder charge, and he could not be convicted 

of both. (Id. at p. 990.) Comparing the elements of the charges, 

the Supreme Court found that the “statutory elements of murder 

do not include all the elements of the lesser offense. Gross 

vehicular manslaughter while intoxicated requires proof of 

elements that need not be proved when the charge is murder, 

namely, use of a vehicle and intoxication.” (Id. at p. 989.) Since a 

second-degree (implied malice) murder conviction does not 

necessarily require proof of either of those two elements, the 

court concluded that the lesser crime was not necessarily 

included within the greater. (Id. at pp. 992-993; see also People v. 

Wolfe (2018) 20 Cal.App.5th 673, 685–686 [no error in trial 

court’s refusal to instruct on involuntary and/or gross vehicular 

manslaughter as neither was a lesser included offense and 

prosecution had not agreed to instructions on lesser related 

offenses].)

Appellant acknowledges that these vehicular manslaughter 

crimes are not lesser included offenses to murder based on a 

comparison of their elements (the “elements” test). However, he 

urges us to apply the “accusatory pleading” test, under which the 

court looks to whether “‘the charging allegations of the 

accusatory pleading include language describing the offense in 

such a way that if committed as specified [some] lesser offense is 

necessarily committed.’” (People v. Montoya (2004) 33 Cal.4th 
19

1031, 1035 (Montoya).) He further argues we may look beyond 

the pleading itself, to evidence adduced at the preliminary 

hearing, which “establishes all three types of vehicular 

manslaughter.” A similar argument was rejected, however, by 

the court in Montoya, which considered “only the pleading for the 

greater offense.” (Id. at p. 1036.) 

Notably, the Montoya court disapproved a contrary holding 

in People v. Rush (1993) 16 Cal.App.4th 20. (Montoya, supra, 33 

Cal.4th at p. 1036, fn. 4.) In People v. Rush, the information 

alleged one count of robbery and one count of grand theft of a 

motor vehicle, both on the same date and involving the same 

victim. (Rush, supra, at p. 27.) The court noted that “[t]he 

pleading contained no further recitation of a connection between 

the offenses; however, the evidence at the preliminary hearing 

and at trial unequivocally established that the automobile was 

part of the loot stolen in the robbery.” (Ibid.) As such, the court 

in Rush concluded that the pleading for the greater offense 

included the requisite allegations for the lesser offense. (Ibid.)

Here, appellant advances the same argument as that made 

in Rush and disapproved by Montoya. The information here 

alleged in count one that on or about October 13, 2015, appellant 

murdered the victim with malice aforethought; in count two, it 

alleged that on the same date, appellant committed hit and run 

driving resulting in death or serious injury to an unnamed 

person. The pleading contains no further information connecting 

the two crimes. As such, appellant necessarily argues that we 

must also look to the preliminary hearing transcript. We decline 

to do so under Montoya and its progeny. “Consistent with the 

primary function of the accusatory pleading test—to determine 

whether a defendant is entitled to instruction on a lesser 
20

uncharged offense—we consider only the pleading for the greater 

offense.” (Montoya, supra, 33 Cal.4th at p. 1036; see also People

v. Smith (2013) 57 Cal.4th 232, 244 [court “need only examine the 

accusatory pleading”]; People v. Chaney (2005) 131 Cal.App.4th 

253, 257 [“‘to determine whether a defendant is entitled to 

instruction on a lesser uncharged offense—we consider only the 

pleading for the greater offense’”].) Appellant’s reliance on People 

v. Ortega (2015) 240 Cal.App.4th 956, 968, which looked beyond 

the accusatory pleading, is therefore inapposite. (See People v. 

Macias (2018) 26 Cal.App.5th 957, 964 (rejecting Ortega’s

“‘expanded accusatory pleading test’” as contrary to Montoya).) 

Appellant next argues that, even if the uncharged crimes 

were lesser related rather than lesser included offenses, the trial 

court nevertheless erred in refusing to instruct on the elements of

those offenses. He claims such instructions were necessary to 

allow the jury to compare the elements of the crimes to 

“determine whether the prosecution only proved some form of 

vehicular manslaughter instead of implied malice murder.” 

In essence, appellant contends that he has a right to have 

the jury instructed on the elements of uncharged crimes in order 

to urge the jury that he is not guilty of the charged offense but 

that he is guilty of something else. An accused is not “entitled to 

instructions on offenses for which he is not charged in order to 

urge the jury that he could have been convicted of something 

other than what is alleged.” (People v. Valentine, supra, 143 

Cal.App.4th at p. 1387.) Unsurprisingly, appellant cites no 

authority to support this proposition. Moreover, we note that 

while the court refused to instruct the jury on the elements of 

three uncharged lesser related offenses, it did allow defense 

counsel to argue about lesser charges that could have been 
21

brought. Defense counsel did so, arguing that there were “a 

myriad” of other crimes appellant could have been charged with, 

including manslaughter and gross vehicular manslaughter while 

intoxicated. As to each, he argued that appellant “did it; he is not 

charged with it.” In sum, we conclude appellant has failed to 

demonstrate error as to the trial court’s refusal to instruct the 

jury on the uncharged vehicular manslaughter offenses.

III. Defense Counsel’s Concession of Hit and Run

During his opening statement and closing argument, 

defense counsel conceded appellant’s guilt as to the second count 

of felony hit and run, focusing instead on the murder count. 

Appellant argues that his counsel’s concession was tantamount to 

a guilty plea on that count. Further, because the record is silent 

as to whether appellant knowingly waived his right to trial on the 

hit and run, he contends the absence of a valid waiver requires 

reversal. He asserts that this error infected his murder 

conviction as well. We agree with appellant as to the hit and run

conviction, and reverse his conviction on that count. But we find 

no error as to the murder conviction. 

A. Factual background

Defense counsel’s opening statement included an 

unequivocal concession on the hit and run count. He stated that 

appellant “caused the accident. No dispute. And then he drove 

away.” A few moments later, he conceded, “As to the hit and run, 

he’s guilty of it; I’ll say that again at the end. There are no 

games being played here. . . . But he’s not guilty of murder.” The 

remainder of the defense opening statement focused on the 

murder charge.

Similarly, in closing argument, defense counsel focused 

solely on the murder charge, stating that as to the hit and run 
22

charge, “I’ve never disputed it. He’s guilty of it; he should be 

punished for it.” In her closing, the prosecutor noted that she 

would not “touch on the second count, the hit and run; I think 

that’s very obvious that he is guilty of that count.” 

B. Effect on hit and run conviction

1. Legal framework

“When a criminal defendant enters a guilty plea, the trial 

court is required to ensure that the plea is knowing and 

voluntary. [Citation.] As a prophylactic measure, the court must 

inform the defendant of three constitutional rights—the privilege 

against compulsory self-incrimination, the right to trial by jury, 

and the right to confront one’s accusers—and solicit a personal 

waiver of each.” (People v. Cross (2015) 61 Cal.4th 164, 170.) 

Accordingly, in the event of a guilty plea or other conduct 

tantamount to a plea, “the record must demonstrate that the 

defendant voluntarily and intelligently waived his constitutional 

trial rights.” (People v. Farwell (2018) 5 Cal.5th 295, 300 

(Farwell).)

Two recent cases, McCoy v. Louisiana (2018) __U.S.__, 138 

S.Ct. 1500 (McCoy) and Farwell, supra, 5 Cal.5th 295 inform our 

analysis here.6 In McCoy, defense counsel informed defendant of 

his plan to concede guilt on the commission of three murders in 

an attempt to avoid a death sentence for defendant. (McCoy, 

supra, 138 S.Ct. at p. 1506.) The defendant insisted he did not 

commit the murders and adamantly objected to any admission of 

6Both opinions were published after the parties had 

completed briefing in this appeal. We granted appellant’s 

request to allow the parties to submit supplemental letter briefs 

addressing McCoy. We also requested and received supplemental 

briefing addressing Farwell. 
23

guilt. (Ibid.) During his opening statement and closing 

argument, over defendant’s objection, defense counsel told the 

jury the evidence was “unambiguous,” that defendant “committed 

three murders.” (Id. at p 1507.) 

The Supreme Court concluded that “counsel may not admit 

her client’s guilt of a charged crime over the client’s intransigent 

objection to that admission.” (McCoy, supra, 138 S. Ct. at p. 

1510.) As the McCoy court noted, “some decisions . . . are 

reserved for the client—notably, whether to plead guilty, waive 

the right to a jury trial, testify in one’s own behalf, and forgo an 

appeal.” (Id. at 1508.) Further, the trial court’s error in allowing 

defense counsel to proceed was “structural”; “when present, such 

an error is not subject to harmless-error review.” (Id. at p. 1511.)

The court also distinguished Florida v. Nixon (2004) 543 

U.S. 175, 186 (Nixon), in which defense counsel several times 

explained to the defendant a proposed concession strategy, but 

the defendant was unresponsive. The Nixon court held that 

“when counsel confers with the defendant and the defendant 

remains silent, neither approving nor protesting counsel’s

proposed concession strategy, ‘[no] blanket rule demand[s] the 

defendant’s explicit consent’ to implementation of that strategy.” 

(McCoy, supra, 138 S.Ct. at p. 1505, quoting Nixon, supra, 543 

U.S. at p. 192.)

The California Supreme Court addressed a related issue in 

Farwell, supra, 5 Cal.5th 295. There, the defendant was charged 

with gross vehicular manslaughter and misdemeanor driving 

with a suspended license. (Id. at p. 298.) During trial, the 

parties entered into a stipulation admitting all the elements of 

the misdemeanor charge; the court later instructed the jury that 

it must accept the stipulated facts as true. (Id. at pp. 298-299.) 
24

The court did not advise the defendant “of the constitutional 

rights implicated by a guilty plea or the stipulation. Nor did it 

solicit a personal waiver of those rights.” (Id. at p. 299.) The 

Supreme Court first found that a “stipulation that admits all of 

the elements of a charged crime necessary for a conviction is 

tantamount to a guilty plea.” (Ibid.) Farwell’s “stipulation 

conclusively established the stipulated facts as true and 

completely relieved the prosecution of its burden of proof on count 

2. While the jury was still required to return a verdict on that 

count, its limited function did not amount to a jury trial in the 

constitutional sense.” (Id. at p. 300.) “Accordingly, the record 

must demonstrate that the defendant voluntarily and 

intelligently waived his constitutional trial rights.” (Ibid.)

The court next turned to the lack of express advisements 

and waivers in the record. It examined the test set forth in 

People v. Howard (1992) 1 Cal.4th 1132 (Howard), which held 

that a plea is valid notwithstanding the lack of express 

advisements and waivers “if the record affirmatively shows that 

it is voluntary and intelligent under the totality of the 

circumstances.” (Id. at p. 1175; see also Farwell, supra, 5 Cal.5th 

at p. 301.) The Farwell court concluded that this “totality of the 

circumstances” test applied “in all circumstances where the court 

fails, either partially or completely, to advise and take waivers of 

the defendant’s trial rights before accepting a guilty plea.” (Id. at 

p. 303.) Applying that test, the court found there was “no 

affirmative evidence that Farwell understood his stipulation

would conclusively establish all of the elements of the 

misdemeanor crime and make the guilty verdict a foregone 

conclusion.” (Id. at pp. 307–308.) 
25

2. Analysis

The facts of this case place it somewhere between the 

circumstances of McCoy and Farwell. As in McCoy, defense 

counsel conceded during argument that appellant committed the 

hit and run. This concession was tantamount to a guilty plea, as 

it admitted “all of the elements of a charged crime necessary for a 

conviction” and “relieved the prosecution of its burden of proof” 

on that count. (Farwell, supra, 5 Cal.5th at pp. 299-300; see also 

McCoy, supra, 138 S.Ct. 1500, 1508.) As such, defense counsel’s 

complete concession of guilt on the hit and run count was 

permissible only if based on a knowing and informed waiver by 

appellant of his right to trial on that count. (See McCoy, supra, 

138 S.Ct. 1500, 1508 [“Just as a defendant may steadfastly refuse 

to plead guilty in the face of overwhelming evidence against her, 

or reject the assistance of legal counsel despite the defendant’s 

own inexperience and lack of professional qualifications, so may 

she insist on maintaining her innocence. . . . These are not 

strategic choices about how best to achieve a client’s objectives; 

they are choices about what the client’s objectives in fact are.”].)

Unlike the facts of McCoy, there is no evidence in the 

record that appellant objected to defense counsel’s strategy. But 

there is also no evidence in the record that appellant was 

informed of counsel’s decision to concede guilt on the hit and run 

count or, crucially, what rights he would be giving up as a result. 

As such, to avoid error, the record must affirmatively show that 

appellant’s waiver was voluntary and intelligent under the 

totality of the circumstances. (Farwell, supra, 5 Cal.5th at p. 

300; Howard, supra, 1 Cal.4th at p. 1180.) Moreover, as the 

Farwell court noted, silent record cases “face their own practical 

hurdle. The failure to advise a defendant of any trial rights will 
26

make it much harder to demonstrate a plea was properly 

accepted.” (Farwell, supra, 5 Cal.5th at p. 306.) Further, “[t]he 

absence of express advisements is particularly troublesome” in 

the context of a stipulation or concession that is tantamount to a 

guilty plea. (Ibid.) 

As in Farwell, we find that the record fails to affirmatively 

show that appellant understood his counsel’s concession 

“effectively extinguished his trial rights” as to the hit and run 

charge. (Farwell, supra, 5 Cal.5th at p. 306.) Although appellant 

was advised of his trial rights at the time of his prior guilty plea 

to the DUI charge in 2013, there is no indication in the record 

that appellant understood he was waiving those same rights by 

virtue of his counsel’s concession during argument in this case. 

(See id. at pp. 306-307.)

We do not doubt, as respondent claims, that defense 

counsel likely made the concession as a strategic decision, given 

the largely undisputed evidence as to the hit and run charge and 

the seriousness of the murder charge. However, with the 

guidance of McCoy and Farwell, we recognize that such a 

previously acceptable tactical decision cannot override appellant’s 

constitutional rights and the protections in place to ensure a 

knowing and voluntary waiver of those rights. Therefore, we 

reverse the conviction on the hit and run charge.7

C. Effect on murder conviction

Appellant also argues that his counsel’s concession of guilt 

as to the hit and run charge requires reversal of the murder 

7Appellant’s argument that the imposition of consecutive 

sentences on the two counts violated section 654 is therefore 

moot.
27

conviction “because the concession could be used by the jury to 

find, as a matter of law, implied malice.” We disagree.

As an initial matter, as discussed herein, defense counsel’s 

concession would be considered tantamount to a guilty plea only 

where it admitted all of the elements of the charged crime. 

(Farwell, supra, 5 Cal.5th at pp. 299-300; see also McCoy, supra, 

138 S.Ct. 1500, 1508.) Appellant fails to demonstrate that this 

was the case for the murder charge; instead, he argues that the 

concession could have relieved the prosecution of its burden to

prove the element of implied malice. Rather than conceding, 

defense counsel expressly argued to the jury that defendant was 

not guilty of murder and did not possess the requisite mental 

state. 

Further, we are not persuaded by appellant’s contention 

that the jury could have found implied malice required for the 

murder charge based on his post-accident conduct alone. As the 

jury was instructed, a hit and run in violation of Vehicle Code 

section 20001, subdivision (b)(2) requires proof of the following 

elements: (1) the defendant was involved in a vehicle accident 

while driving; (2) the accident caused the death of someone else; 

(3) the defendant “knew that he had been involved in an accident 

that injured another person or knew from the nature of the 

accident that it was probable that another person had been 

injured”; and (4) the defendant willfully failed to perform one or 

more enumerated duties, including immediately stopping at the 

scene of the accident, providing reasonable assistance to any 

injured person, providing his name and address to the other 

driver, and notifying police or highway patrol of the accident 

“without unnecessary delay.” (Veh. Code §§ 20001, 20003, 

20004.) As such, the hit and run charge focused entirely on the 
28

fact of the accident and appellant’s conduct afterward. Indeed, a 

concession as to the hit and run charge does not require an 

admission that appellant caused the accident. (See People v. 

Martinez (2017) 2 Cal.5th 1093, 1103 [“a defendant who flees the 

scene of an injury accident has committed a crime even if the 

accident was solely the result of the victim’s own negligence”].)

As a result, appellant’s argument depends on his theory 

that the jury could have based a finding of implied malice on his 

post-accident conduct alone. Appellant cites no authority in 

support of this proposition. His citation to People v. Cravens

(2012) 53 Cal.4th 500 (Cravens) is inapposite. In Cravens, the 

court found substantial evidence to support a second-degree 

murder conviction for a defendant who delivered a deadly sucker 

punch at the end of a group fight. (Id. at pp. 508-511.) In 

upholding the jury’s finding of implied malice, the court relied on 

the circumstances of the attack, as well as defendant’s conduct 

both before and after the fight, noting that his post-accident 

callousness “bolstered the finding of implied malice.” (Id. at p. 

511.)

Similarly, here, the prosecution argued at length regarding 

appellant’s pre-accident knowledge of the dangers of drinking 

and driving, his decision to drive while impaired on the day of the 

accident, and his decision to turn in front of the motorcyclist, 

concluding that the evidence established that he acted with 

implied malice at the time of the accident. For example, she 

argued that the victim’s death occurred because appellant “made 

decisions that night, knowing that they would result in hurting 

or killing another person, and said, ‘I’ll take the risk.’” She also 

argued that appellant’s conduct in leaving the scene bolstered the 

showing of his disregard for human life. She did not suggest, 
29

however, that the jury could find implied malice based solely on 

appellant’s post-accident conduct. To the contrary, in her 

rebuttal argument, she stated that the test for implied malice 

was “what was the defendant’s state of mind before he committed 

that act?” 

Moreover, appellant’s counsel argued several times that his 

post-accident conduct was irrelevant to the malice inquiry. He 

told the jury that “the question isn’t what happened after the 

accident; it’s malice aforethought. . . . The question is what was 

going on in his head before the accident.” 

We also reject appellant’s argument that “nothing in the 

jury instructions prohibited the jury from finding implied malice 

based solely on defendant’s post-accident conduct and mental 

state.” The jury was instructed with CALCRIM No. 520, 

providing that the prosecution must prove that “when the 

defendant acted, he had a state of mind called malice 

aforethought,” and that implied malice required a finding that “at 

the time he acted, he knew his act was dangerous to human life.” 

Further, at appellant’s request and over the prosecutor’s

objection, the court modified the instruction to include the 

following factors that the jury could consider to determine 

whether appellant acted with implied malice: “(1) A blood alcohol 

level above the legal limit of .08 percent; (2) Whether there is 

evidence of pre-drinking intent to drive; (3) Defendant’s 

knowledge of the hazards of driving while intoxicated or under 

the influence of alcohol; (4) Highly dangerous driving.” Notably, 

these factors focus on evidence prior to or at the time of the 
30

accident. We also note that the jury was instructed with 

CALCRIM No. 372, which provides that evidence of a defendant’s 

flight after the crime “may show that he was aware of his guilt,” 

but “cannot prove guilt by itself.” As such, the record does not 

support appellant’s assertion that the jury could have based its 

second degree murder verdict on his post-accident conduct alone. 

IV. Cumulative Error

Appellant also contends that the cumulative effect of the 

errors he has identified requires reversal of the murder 

conviction. Because we found no errors with respect to the 

murder conviction, we reject this claim.

DISPOSITION

The judgment of conviction on count one is affirmed. The 

conviction on count two is reversed and the matter is remanded 

for further proceedings consistent with this opinion.

CERTIFIED FOR PARTIAL PUBLICATION

COLLINS, J.

We concur:

MANELLA, P. J.

MICON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California 

Constitution.