Filed 3/3/14 P. v. Camargo CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

 Plaintiff and Respondent,

 v.

IVAN SERRANO CAMARGO,

 Defendant and Appellant.

F064077

(Super. Ct. No. F09904698)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, 

Judge.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey 

D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-
2.

INTRODUCTION

Appellant Ivan Serrano Camargo was convicted by jury, in count 1, of the murder 

of Pauline Marie Rangel (Pen. Code, § 187, subd. (a))1; in count 2, leaving the scene of 

an accident which caused death or great bodily injury (Veh. Code, § 20001, subd. (a)); in 

count 3, driving while under the influence of alcohol and/or a drug and doing an act or 

neglecting a duty imposed by law, which proximately caused bodily injury to Rangel 

(Veh. Code, § 23153, subd. (a)); and, in count 4, driving with .08 percent blood-alcohol 

level causing injury and doing an act or neglecting a duty imposed by law, which 

proximately caused bodily injury to Rangel (Veh. Code, § 23153, subd. (b)). Camargo 

was sentenced to 15 years to life for the murder. Sentence on the other counts was 

imposed and stayed pursuant to section 654. 

On appeal, Camargo contends that the trial court erred when it failed to instruct on 

involuntary manslaughter under section 192, subdivision (b) as a lesser included offense 

of murder; that the prohibition against instructing on involuntary manslaughter as a lesser 

included offense of implied malice murder committed in driving a vehicle denied him his 

right to equal protection; that instructing that evidence of uncharged criminal acts could 

be considered true if proven by a preponderance of the evidence violated his right to have 

guilt established beyond a reasonable doubt; and that cumulative error occurred. We 

disagree and affirm. 

STATEMENT OF FACTS

We view the evidence in the light most favorable to the verdict and resolve all 

conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes

(1986) 42 Cal.3d 284, 303.) 

On August 11, 2009, after 10:00 p.m., Navdeep Uppal, who lived near the 

intersection of Peach and Manning Avenues in Fresno, heard a collision and told his 

 

1 All further statutory references are to the Penal Code unless otherwise stated. 
3.

brother to call 9-1-1. Within five minutes, Uppal and his brother arrived at the 

intersection and saw Camargo, with blood on him, walking towards them from a pickup 

truck. As Camargo approached, Uppal asked if he was alright, but Camargo did not 

respond. Camargo was not walking straight, as if he was intoxicated. 

A green Honda Civic was visible 25-30 feet from the intersection, in a field by an 

irrigation canal. Camargo walked toward the Honda. Others gathered at the scene and 

Uppal lost sight of Camargo. 

California Highway Patrol officers arrived at the scene at about 10:30 p.m. There,

officers saw Camargo’s white GMC pickup with major front-end damage, consistent with 

high-speed impact. The driver’s door was open and the pickup empty. There were beer 

cans on the floorboard and there was a strong odor of alcohol in the pickup. Several beer 

cans were open, some were crushed, and there was beer soaked into the floorboard. 

Items inside the pickup were scattered, and there was blood on the steering wheel. 

The Honda Civic, located on the other side of the canal, had major damage to the 

passenger side, almost to the gear shift in the center of the vehicle. The Honda also 

sustained damage to the front end, hood, trunk, windshield, pillars and roof, indicating 

the Honda had rolled over at least once. Damage to the passenger side of the Honda 

matched damage to the front end of the pickup, indicating that the pickup broadsided or 

“T-boned” the Honda. Physical evidence at the scene indicated that, upon impact, the 

Honda changed direction, continued up a dirt bank, struck a concrete water valve with the 

driver’s side door, went airborne, cleared a 17-foot wide canal at a diagonal, landed on its 

wheels, overturned on a dirt access road, and came to rest on its wheels as it struck a 

guide post in a vineyard. The lack of skid marks approaching the intersection indicated 

that neither driver braked before impact. 

Inside the Honda, officers observed Rangel, slumped to her side. She had a 

seatbelt on, but sustained major head trauma. She was unresponsive and had no pulse. A 
4.

subsequent examination revealed that Rangel died from head and chest trauma due to 

blunt impact from the collision. 

People at the scene indicated the direction in which Camargo had left. With the 

aid of a helicopter and heat-seeking device, Camargo was discovered in a vineyard. After 

refusing to comply with directives to surrender, officers forcibly removed Camargo from

the vineyard and apprehended him. 

Camargo had a seatbelt abrasion over his left shoulder, consistent with being in the 

driver’s seat at the time of the collision. He had minor abrasions on his left cheek and 

earlobe, and blood on his shirt. Officers noted Camargo had signs of intoxication, 

including a strong odor of alcohol on his person; red, watery eyes; slurred speech; and 

was slow to respond to officers’ questions. When asked if he had been drinking, 

Camargo stated that he had. 

After Camargo was advised on and waived his Miranda2rights in Spanish, an 

officer interviewed him in Spanish about the collision. Camargo said that he drank four 

12-ounce cans of Bud Light beer between 11:00 a.m. and 6:00 p.m. According to 

Camargo, he was going about 60 miles per hour, did not see the stop sign at the 

intersection and “must have ran it.” Camargo felt something “hard” hit him. After the 

collision, he became frightened and did not want to get caught, so he hid in the vineyard. 

Blood drawn at 11:52 p.m. showed a blood-alcohol content of 0.14 percent. Due 

to the time gap between the collision and the blood draw, it was estimated that Camargo’s 

blood-alcohol content at the time of the collision must have been 0.17 percent. Based on 

a hypothetical that assumed Camargo’s approximate height and weight and his claimed 

amount of drinking, an expert testified that the person should not have had any alcohol in 

their system at 10:15 p.m. Based on a hypothetical that assumed Camargo’s approximate 

height and weight, his measured blood-alcohol content of 0.14 percent, and 

 

2 Miranda v. Arizona (1966) 384 U.S. 436, 474.
5.

circumstances of the collision, the expert testified that the driver could not safely operate 

a motor vehicle. 

Examination of the pickup showed that its speed was approximately 76 miles per 

hour at impact and there was no indication that Camargo had applied the brakes. Both 

the pickup and the Honda were found to be fully functional prior to the collision, and 

both had headlights on at the time of the collision. 

It was stipulated at trial that Camargo had previously been arrested for driving 

under the influence in November of 2006 and again in August of 2007. In the first 

instance, he pled guilty to driving with a .08 percent blood-alcohol level (Veh. Code,

§ 23152, subd. (b)); in the second with “wet reckless” driving (Veh. Code, § 23103, 

pursuant to Veh. Code, § 23103.5). Camargo was on probation for both offenses at the 

time of the August 2009 collision. Camargo received formal warnings at the time he 

entered his pleas, including potential liability for murder, and he had attended various 

classes on the potential consequences of driving under the influence. 

In Camargo’s defense, two people testified that they had been with Camargo on 

the evening of the collision. Both testified that Camargo looked tired and stressed, but 

not intoxicated when they saw him. 

A licensed mechanical engineer, an expert in collision reconstruction, estimated 

that the pickup was traveling between 62 and 69 miles per hour at the time of the impact. 

DISCUSSION

I. INSTRUCTIONS ON LESSER INCLUDED OFFENSE OF INVOLUNTARY 

MANSLAUGHTER

Camargo argues the trial court erred by failing to instruct the jury, sua sponte, on 

involuntary manslaughter as a lesser included offense of murder, and that his conviction 

must be reversed for this failure. We disagree.

“‘“[U]nder 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 
6.

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. Sanchez

(2001) 24 Cal.4th 983, 988 (Sanchez), overruled on another point in People v. Reed

(2006) 38 Cal.4th 1224, 1228-1229, and quoting People v. Breverman (1998) 19 Cal.4th 

142, 154, fn. 5.) 

In general, the trial court has a duty to instruct the jury sua sponte as to the 

principles of law relevant to and governing the case. (People v. Wims (1995) 10 Cal.4th 

293, 303, overruled on other grounds in People v. Sengpadychith (2001) 26 Cal.4th 316, 

326; People v. Saddler (1979) 24 Cal.3d 671, 681.) This duty extends to “instructions on 

lesser included offenses when the evidence raises a question as to whether all of the 

elements of the charged offense” have been established, but instruction on lesser included 

offenses are not required if “there is no evidence that the offense [is] less than that 

charged.” (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Barton (1995) 12 

Cal.4th 186, 200-201.) Instructions on lesser included offenses must be given whenever 

there is “‘“evidence from which a jury composed of reasonable [persons] could have 

concluded”’ that the particular facts underlying the instruction did exist.” (People v. 

Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in Barton, supra, 

at p. 201; People v. Flannel (1979) 25 Cal.3d 668, 684.) 

Section 192, subdivision (b), defines involuntary manslaughter as “the unlawful 

killing of a human being without malice” during “the commission of an unlawful act, not 

amounting to felony; or in the commission of a lawful act which might produce death, in 

an unlawful manner, or without due caution and circumspection.” Most importantly to 

our discussion, subdivision (b) also provides in pertinent part: “This subdivision shall not 

apply to acts committed in the driving of a vehicle.” (Ibid.)

Despite the fact that section 192, subdivision (b), is very clear that involuntary 

manslaughter is inapplicable to acts committed in the driving of a vehicle and despite the 

fact that defense counsel, with Camargo’s approval, withdrew her request for such an 
7.

instruction3, Camargo still makes various arguments that involuntary manslaughter 

instructions should have been given sua sponte. We find no merit to any of Camargo’s 

arguments. 

Camargo correctly notes that the Legislature amended California’s involuntary 

manslaughter statute in 1945, now codified in section 192, subdivision (b), to preclude 

the application of involuntary manslaughter to unlawful homicides committed in the 

driving of a vehicle by specifically stating, “[t]his subdivision shall not apply to acts 

committed in the driving of a vehicle.” It simultaneously created a third type of 

manslaughter, denominated “vehicular” manslaughter, now codified in subdivision (c) of 

section 192. (Stats. 1945, ch. 1006, §§ 1-2, pp. 1942-1943.)

According to Camargo, the purpose of the 1945 amended statute was to ensure 

that vehicular homicides would be prosecuted under the then-new vehicular manslaughter 

statute. For more than 30 years after the amendment, cases of vehicular homicide were 

prosecuted as vehicular manslaughter, not murder, except where the defendant’s conduct 

fell within a felony-murder theory. (See, e.g., People v. Calzada (1970) 13 Cal.App.3d 

 

3 Prior to commencement of jury selection, Camargo submitted requested jury 

instructions, including CALCRIM No. 580 [involuntary manslaughter, as a lesser 

included offense of murder; No. 642 [lesser included offenses when defendant charged 

with second-degree murder]; No. 572 [voluntary manslaughter]; No. 590 [gross vehicular 

manslaughter while intoxicated; and No. 591 [vehicular manslaughter while intoxicated]. 

After discussion over the course of several days, including the possibility of amending 

the information to add a charge of a lesser included offense which the prosecution chose 

not to do, defense counsel withdrew her request for instruction on any lesser offenses. 

When the court asked defense counsel if she was, “in essence, then, asking the jury 

simply to decide the homicide issue on the basis of the second degree murder as 

charged,” counsel stated that she was. The court then addressed Camargo and explained 

that this meant it would be a “straight up or down decision,” and that “[i]f the jury finds 

there was implied malice on your part, then they can convict on the second degree 

murder. If they decide that there was no implied malice on your part, then there is no 

homicide crime that they can convict you of, only the driving under the influence and the 

other related charges.” Camargo stated that he agreed with that decision. 
8.

603, 605-607.) It was not until People v. Watson (1981) 30 Cal.3d 290, in which our 

Supreme Court held that a death in a traffic collision may be prosecuted as second-degree 

murder with implied malice and not exclusively as vehicular manslaughter. (Id. at pp. 

293, 295-299.) Camargo argues therefore that the legislative purpose of the 1945 

subdivision (b) amendment to section 192 “has no application to a case like [his], where 

the prosecutor has chosen to prosecute outside the scope of the vehicular manslaughter 

statute and instead file a murder charge in a vehicular homicide case.” 

To further support his argument, Camargo relies on our Supreme Court’s decision 

in Sanchez, supra, 24 Cal.4th 983, which held that gross vehicular manslaughter while 

intoxicated (§ 191.5, subd. (a)) is not a lesser included offense of murder because the 

statutory elements of murder do not include all of the elements of gross vehicular 

manslaughter while intoxicated. In other words, murder can be committed in ways other 

than by a motor vehicle or while intoxicated. (Sanchez, supra, at pp. 985, 988-989, 992.) 

But, according to Camargo, since Sanchez cites with approval prior case law holding that 

involuntary manslaughter is generally classified as a lesser included offense of murder

(Id. at pp. 989-990), Sanchez does not preclude instructing on involuntary manslaughter 

as a lesser included offense of murder in a situation such as his because involuntary 

manslaughter does not include as an element the use of a motor vehicle. In other words, 

Camargo maintains that despite the express language of section 192, subdivision (b) at 

issue here - “[t]his subdivision shall not apply to acts committed in the driving of a 

vehicle” - subdivision (b) must be construed so that “generic” involuntary manslaughter 

is a lesser included offense of “generic” murder committed with a vehicle. 

We disagree with Camargo’s claim that involuntary manslaughter is a lesser 

included offense of murder in a case involving vehicle homicide. Such an assumption 

ignores the plain language of section 192, subdivision (b), the fundamental definition of a 

lesser included offense, and the reasoning and holding in Sanchez, on which he relies. 
9.

The question in Sanchez was whether the defendant could be convicted of both 

gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and murder. The 

court in Sanchez determined that the defendant could be charged and convicted of both 

offenses but that gross vehicular manslaughter while intoxicated is not a lesser included 

offense of murder. In its reasoning, the Sanchez court first noted that,

“Although the general tradition relied upon by defendant is well 

established, this court has not previously considered the question whether 

the settled practice of treating manslaughter as an offense necessarily 

included within murder should be extended to the more recently created 

crimes of vehicular manslaughter while intoxicated, and defendant does not 

identify a tradition of comparable pedigree with respect to such crimes.” 

(Sanchez, supra, 24 Cal.4th at p. 990.) 

It then reasoned: 

“Although it long has been held that manslaughter is a lesser included 

offense of murder, this tradition has not explicitly included offenses 

requiring proof of specific elements unique to vehicular manslaughter. 

Unlike manslaughter generally, vehicular manslaughter while intoxicated 

requires proof of elements that are not necessary to a murder conviction. 

The use of a vehicle while intoxicated is not merely a ‘circumstance,’ but 

an element of proof when the charge is gross vehicular manslaughter while 

intoxicated. Gross vehicular manslaughter while intoxicated is not merely 

a degree of murder, nor is it a crime with a lengthy pedigree as a lesser 

included offense within the crime of murder.” (Id. at p. 991.) 

As noted by respondent, the ultimate result of the Sanchez decision is that, because 

gross vehicular manslaughter is not a lesser included offense of murder and a defendant is 

therefore not entitled to such lesser included instructions, the prosecutor in a drunkdriving murder case must charge both vehicular manslaughter and murder or, if it chooses 

to only charge a defendant with murder, it risks an acquittal on the murder charge in the 

event the jury determines the facts do not support a finding of implied malice 

aforethought. Thus, Sanchez’s holding does not advance Camargo’s position. 

Most importantly, Camargo’s argument ignores the plain meaning of the statutory 

language set forth in section 192, subdivision (b), which clearly states that involuntary
10.

manslaughter cannot be charged as a matter of law in cases involving allegedly unlawful 

homicide committed through the use of an automobile. “Statutory construction begins 

with the plain, commonsense meaning of the words in the statute, ‘“because it is 

generally the most reliable indicator of legislative intent and purpose.”’ [Citation.]” 

(People v. Manzo (2012) 53 Cal.4th 880, 885.) Witkin explains that this statutory

provision “makes the ordinary definition of involuntary manslaughter inapplicable to acts 

committed in driving a vehicle.” (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)

Crimes Against the Person, § 262, p. 1086.) 

Under the plain meaning of the foregoing language in the involuntary 

manslaughter statute (§ 192, subd. (b)), which Camargo refers to as “generic”,

involuntary manslaughter cannot be charged as a matter of law in cases involving 

homicides committed through the use of a vehicle. As discussed, the constitutional right 

to jury instructions on lesser included offenses is not absolute because the defendant must 

present evidence substantial enough for a jury to convict the defendant of the lesser 

included offense. (People v. Breverman, supra, 19 Cal.4th at p. 162.) Here, the evidence 

did not merit the jury’s consideration of involuntary manslaughter under section 192, 

subdivision (b). Camargo committed the offense while driving a motor vehicle and he 

could therefore not be charged with or convicted of involuntary manslaughter. He 

therefore had no right to have the jury instructed on involuntary manslaughter. 

We finally reject Camargo’s notion that, if the trial court instructs only on murder 

in a case involving death occurring due to a defendant’s driving under the influence, an 

absurd result might occur, namely that the jury cannot return a manslaughter verdict. In 

other words, Camargo’s concern is that, because the jury has to make an “all or nothing” 

decision, it will convict even if the evidence does not support all of the elements of the 

allegation. But, as recognized in People v. Valentine (2006) 143 Cal.App.4th 1383, 

1387:
11.

“[I]t has never been the law that an accused is 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.” 

If the prosecution charges a defendant only with murder, and the jury determines that 

implied malice has not been established, the result is not absurd - the result is an acquittal 

on the sole charge of murder. If the prosecution makes this election, it must accept such 

a verdict from the jury. 

In sum, we conclude the trial court did not err by failing to sua sponte instruct the 

jury that involuntary manslaughter under section 192, subdivision (b) is a lesser included 

offense of second degree murder based on implied malice as charged in count 1. 

Moreover, even if we were to somehow find that the trial court should have 

instructed the jury on involuntary manslaughter, any error would have been harmless. An 

examination of the record does not establish a reasonable probability of a more favorable 

result. (People v. Breverman, supra, 19 Cal.4th at p. 165; accord, People v. Thomas

(2012) 53 Cal.4th 771, 814.) 

“At least since 1981, when our Supreme Court affirmed a conviction of 

second degree murder arising out of a high speed, head-on automobile 

collision by a drunken driver that left two dead, California has followed the 

rule in vehicular homicide cases that ‘when the conduct in question can be 

characterized as a wanton disregard for life, and the facts demonstrate a 

subjective awareness of the risk created, malice may be implied ....’ 

[Citation.] In such circumstances, ‘a murder charge is appropriate.’ 

[Citation.] So-called implied malice second degree murder ... is committed 

‘when a person does “‘“an act, the natural consequences of which are 

dangerous to life, which act was deliberately performed by a person who 

knows that his conduct endangers the life of another and who acts with 

conscious disregard for life”’ ....” [Citations.] Phrased in a different way, 

malice may be implied when [a] defendant does an act with a high 

probability that it will result in death and does it with a base antisocial

motive and with a wanton disregard for human life.’ [Citation.] ‘[A] 

finding of implied malice’ ... ‘depends upon a determination that the 

defendant actually appreciated the risk involved, i.e., a subjective 

standard.’” (People v. Ortiz (2003) 109 Cal.App.4th 104, 109-110, quoting 

People v. Watson, supra, 30 Cal.3d at pp. 296-297, 298, 300, italics and fn. 

omitted.)
12.

The evidence in the instant case overwhelmingly supports a finding of implied 

malice. Camargo had two prior convictions for allegations involving drinking while 

driving, he had attended classes on the consequences of driving under the influence and 

was repeatedly advised that he could be charged with murder if he killed someone while 

driving under the influence. Unfortunately, he drove again while drinking. He drove 

with a blood-alcohol content greatly in excess of the legal limit, he was speeding in 

excess of 75 miles per hour, and he ran a stop sign before tragically ending the life of an 

innocent individual. He then ran from the scene and hid to avoid detection. It is not 

reasonably probable a jury would have found that he did not appreciate the risk involved 

in his actions or act in wanton disregard for human life. (People v. Ortiz, supra, 109 

Cal.App.4th at pp. 109-110.) Camargo’s conviction for implied malice second degree 

murder will not be disturbed. 

II. EQUAL PROTECTION 

In the alternative to the above argument, Camargo contends that defining 

involuntary manslaughter under section 192, subdivision (b) to exclude acts committed in 

the driving of a vehicle violated his right to equal protection. Camargo’s argument is that 

all defendants charged with implied malice murder are “entitled” to a jury instruction on 

involuntary manslaughter as a lesser included offense, except those defendants charged 

with “acts committed in the driving of a vehicle.”

Camargo, however, bases his argument on a faulty premise. “A defendant 

claiming that state legislation violates equal protection principles must first demonstrate 

that the laws treat persons similarly situated in unequal manner.” (People v. Timms

(2007) 151 Cal.App.4th 1292, 1302.) But not all defendants charged with implied 

malice murder are entitled to a jury instruction on involuntary manslaughter as a lesser 

included offense. As explained earlier, a defendant is entitled to an instruction on a lesser 

included offense only if the record contains substantial evidence of the lesser offense. 

(People v. Moore (2011) 51 Cal.4th 386, 408-409.) Contrary to Camargo’s suggestion, 
13.

the evidence in an implied malice murder case does not necessarily require a jury 

instruction on involuntary manslaughter as a lesser included offense. (See, e.g., People v. 

Dixon (1995) 32 Cal.App.4th 1547, 1550, 1556-1558 [defendant charged with second 

degree murder not entitled to instruction on involuntary manslaughter as a lesser included 

offense because substantial evidence did not support the instruction]; People v. Evers

(1992) 10 Cal.App.4th 588, 592, 598 [same].)

Based on the foregoing, we reject Camargo’s equal protection challenge. 

III. INSTRUCTION ON UNCHARGED CRIMINAL ACTS

Camargo contends that CALCRIM No. 375, which states evidence of uncharged 

criminal acts could be considered true if proven by a preponderance of the evidence, 

violated his federal constitutional right to have guilt established by proof beyond a 

reasonable doubt. We disagree.

The trial court instructed the jury with CALCRIM No. 375 as follows:

“The People have presented evidence that the defendant committed 

other driving under the influence offenses that were not charged in this 

case. You may consider this evidence only if the People have proved by a 

preponderance of the evidence that the defendant in fact committed the 

uncharged offenses. [¶] Proof by a preponderance of the evidence is ... a 

different burden of proof than proof beyond a reasonable doubt. A fact is 

proved by a preponderance of the evidence if you conclude that it is more 

likely than not that the fact is true. If the People have not met this burden, 

you must disregard this evidence entirely. [¶] If you decide that the 

defendant committed the uncharged offenses, you may, but are not required 

to, consider that evidence for the limited purpose of deciding whether or 

not the defendant knew his act was dangerous to human life when he 

allegedly acted in this case. [¶] In evaluating this evidence consider the 

similarity or lack of similarity between the uncharged offenses and acts and 

the charged offenses. [¶] Do not consider this evidence for any other 

purpose. [¶] Do not conclude from this evidence that the defendant has a 

bad character or is disposed to commit crime. [¶] If you conclude that the 

defendant committed the uncharged offenses, that conclusion is only one 

factor to consider along with all the other evidence. It is not sufficient by 

itself to prove that the defendant is guilty of murder in the second degree. 

The People must still prove each charge beyond a reasonable doubt.” 
14.

Camargo acknowledges that a similar argument was rejected by the Supreme 

Court in People v. Carpenter (1997) 15 Cal.4th 312 (addressing CALJIC No. 2.50.1), but 

argues that Carpenter is distinguishable. Here, as argued by Camargo, the instruction 

was unnecessary in light of the stipulations at trial as to the truth of the uncharged acts. 

Camargo argues that giving the instruction anyway confused the jury by needlessly 

introducing the preponderance of the evidence standard into the case. 

We agree with Camargo that this instruction was unnecessary in light of the 

stipulations at trial as to the truth of the uncharged acts. But we disagree that the 

instruction confused the jury. The jury was instructed, pursuant to CALCRIM No. 200, 

in relevant part, that “[s]ome of these instructions may not apply, depending on your 

findings about the facts of the case.... After you have decided what the facts are, follow 

the instructions that do apply to the facts as you find them.” Furthermore, while 

CALCRIM No. 375, as given, authorized the jury to use the preponderance standard to 

determine whether Camargo committed the uncharged offenses, it explicitly linked this 

lesser standard of proof with the uncharged prior driving under the influence offenses and 

reminded the jury that this evidence was not “sufficient by itself to prove that the 

defendant is guilty of [m]urder in the [s]econd [d]egree. The People must still prove each 

charge beyond a reasonable doubt.” 

Nothing in CALCRIM No. 375 authorized the jury to use a preponderance of the 

evidence standard for anything other than the preliminary question of whether Camargo 

committed the uncharged offenses. Viewing the instruction as a whole, it is unreasonable 

to think the jury would have interpreted the instruction to authorize conviction of the 

charged offense based on a lower standard than proof beyond a reasonable doubt. (See

People v. Reyes (2008) 160 Cal.App.4th 246, 252 [similar analysis applied to CALCRIM 

No. 852, relating to evidence of prior uncharged acts of domestic violence].) 

The preponderance standard for uncharged offenses does not violate the state or 

federal Constitution, does not reduce the prosecution’s burden of proof, and does not 
15.

violate due process. (People v. Carpenter, supra, 15 Cal.4th at pp. 380-383; see also 

People v. Reliford (2003) 29 Cal.4th 1007, 1013-1016; People v. Johnson (2008) 164 

Cal.App.4th 731, 738-740; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.) We 

are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.) We reject Camargo’s claim to the contrary. 

IV. CUMULATIVE ERROR

Camargo contends finally that the cumulative impact of all of the above errors 

deprived him of a fair trial. We have either rejected Camargo’s claims of error and/or 

found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we 

find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 

Cal.4th 514, 560.) 

DISPOSITION

The judgment is affirmed. 

_____________________

Franson, J.

WE CONCUR:

_____________________

Gomes, Acting P.J.

_____________________

Poochigian, J.