1 Filed 4/23/15 P. v. Tom CA1/3 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD TOM, Defendant and Appellant. A124765
(San Mateo County Super. Ct. No. SC064912)

In re RICHARD TOM, on Habeas Corpus. A130151
(San Mateo County Super. Ct. No. SC064912)

On the evening of February 19, 2007, defendant Richar d Tom, while driving at a high rate of speed, broadsided a vehicle driv en by Loraine Wong as she was making a left
turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong’s two daughters, Kendall (aged 10) an d Sydney (8) were riding in the rear passenger seat. Sydney died as a result of injuries sustained in the collis ion. Kendall survived, but sustained serious injuries. As a result of th e collision, defendant wa s charged with gross vehicular manslaughter while intoxicated (Pen . Code, § 191.5, subd. (a)), driving under the influence causing harm to another (Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol level of 0.08 percent or hi gher causing harm to another (Veh. Code, § 23153, subd. (b)). Defendant pl eaded not guilty to all charges. After a lengthy trial, the2 jury acquitted defendant of all alcohol-rela ted charges but return ed a guilty verdict on gross vehicular manslaughter as a lesser incl uded offense of gross ve hicular manslaughter
while intoxicated. The trial court sentenced defendant to an aggregate term of seven years, consisting of the middle term of four years on his conviction for gross vehicular manslaughter, plus a term of three years for th e personal infliction of great bodily injury on Kendall as a sentence enhancement (Pen. Co de, § 12022.7). In addition, the court ordered defendant to pay restituti on in the sum of $147,860.82. In case No. A124765, defendant appeals the judgment imposed following his jurytrial conviction. He asserts multiple gro unds for reversal, including deprivation of constitutional rights, prosecutorial misconduct, improper admission of opinion testimony, prosecutorial failure to disclo se exculpatory evidence, ineff ective assistance of counsel, and sentencing error. In case No. A130151, defendant petitions for a writ of habeas corpus on the grounds of ine ffective assistance of counsel and prosecutorial misconduct. In our earlier opinion, we concluded that the prosecution had violated defendant’s Fifth Amendment privilege against self-incrimi nation by proffering testimony of his postarrest, pre- Miranda silence as consciousness of guilt evidence. ( People v. Tom (Mar. 19, 2012, A124765, A130151 (consol .) [nonpub. opn.] at p. 2 ( Tom I ).) Because we concluded the error was not harmless, we re versed the judgment and remanded the matter for further proceedings consis tent with our opinion and we dismissed the writ petition as moot. ( Ibid. ) Our Supreme Court granted review, an d, in a 4-3 decision, reversed our decision and held that, as a matter of fi rst impression, defendant was required to unambiguously invoke his Fifth Amendment right against self-incrimination in order to rely on that privilege to preclude the admission of his post-arrest, pre- Miranda silence as consciousness of guilt evidence. ( People v. Tom (2014) 59 Cal.4th 1210, 1214 ( Tom II ).) Because we had not considered, as a que stion of fact, whet her defendant had unambiguously invoked his Fift h Amendment privilege, the Supreme Court remanded the
matter with directions that we consider the is sue in the first instance and, if necessary, the other issues raised on direct appeal. ( Id . at pp. 1215, 1237.)3 Having considered the contentions raised on appeal, we now conclude that the prosecution’s proffer of evidence of defendant’s post-arrest, pre- Miranda and postMiranda silence after he unambiguously invoked his right to remain silent violated both
his federal constitutional Fifth Amendment right against self-i ncrimination and his Fourteenth Amendment due process right to a fa ir trial. We further conclude that the
erroneous admission of evidence was not ha rmless beyond a reasonable doubt. Accordingly, on the appeal in case No. A124765, we re verse the judgment and remand the matter for further proceedings consistent w ith this opinion. In case No. A130151, we dismiss the petition for a writ of habeas corpus as moot.

FACTUAL BACKGROUND At trial the prosecution presented te stimony by several police officers who described the scene at the collision, as we ll as the events follo wing the collision which
culminated in defendant’s a rrest. Other prosecution w itnesses included Loraine Wong and Peter Gamino, a retired police officer and friend of defendant. Gamino was with defendant during the eveni ng the accident occurred and was driving another vehicle
behind defendant’s vehicle when the collision occurre d. There were no third-party witnesses to the collision and both sides pr esented expert testim ony regarding the speed
of defendant’s vehicle at the time of the co llision. We recount pertinent trial testimony
below. 1

The Accident On the evening of February 19, 20 07, Loraine Wong decided to take her daughters, Sidney and Kendall (ages eight and te n), to her sister’s h ouse in Sunnyvale for an overnight visit. Wong drove a Nissan Maxi ma automatic sedan that evening. Kendall was seated in the rear passenger side of the Ni ssan and Sidney sat in a booster seat next to

1 The parties presented expert testim ony regarding whether defendant’s blood alcohol level, measured several hours after the accident, indicated that he was impaired at the time of the accident. We do not recount a ny of that expert tes timony on blood alcohol level because defendant was acquitte d on the alcohol related offenses.4 Kendall. Before departing, Wong secured both girls in their seat belts and fastened her
own seat belt. Wong took Santa Clara Avenue to Woodside Road enroute to her sister’s home. Upon reaching the intersection of Woodsi de Road and Santa Clara Avenue, Wong planned to turn left and proceed on Woods ide Road to the Sout hbound I-280 on ramp. Wong drove this route to her sister’s hom e hundreds of times during the 15 years she lived on Santa Clara Avenue. As Wong backed out of the driveway, she called her sister on a hand-held cell phone to let her know “we were on our way to her house.” The evening was chilly and clear. Wong spoke with her sister for a few minutes until she came to a full stop at the intersection of Sa nta Clara Avenue and Woodside Road. Wong
had finished her conversation with her sister but still had the cell phone in her hand. Her car’s headlights and left-turn indicator were on. Wong entered the intersection by inching forward, and looking to her left, she observed the next cross-street, Alameda de la s Pulgas. Wong then looked right and left again. Seeing no on-coming vehicles in eith er direction, she eased onto the accelerator pedal to execute a left turn. As she began to turn she “saw a big flash of light” and was struck by a vehicle on her left (driver’s) si de. Before she saw the flash of light, Wong heard no sound associated with a car braking or a horn. She did not see headlights to her left and never saw defendant’s car. Wong estimated she was going about 15 miles per
hour at the time of the collision. After the collision, Wong di scovered that her daughters were injured. She yelled their names: Kendall responded, but Sidney did not and never regained consciousness. Shortly, medical personnel arrived at the sc ene and extracted Wong and her daughters from the vehicle. Wong, Sidney , and Kendall were transporte d to the hospital. There, Wong was informed that Sidney had died. 2 Kendall sustained a cut to her forehead that

2 Dr. Tom Rogers, a forensic pathologist, performed the autopsy on Sidney. Rogers testified that the cause of d eath was multiple external and in ternal injuries caused by blunt force trauma. The injuries were consiste nt with a child restrain ed in a booster seat in a vehicle that was T-boned by a speeding car.5 required 30-40 stitches, a broke n arm and an injury to he r neck, and Wong suffered a broken rib and finger. Wong was released from the hospital on the night of the collision
but Kendall remained in th e hospital for a week.
Retired San Francisco Police Officer Pe ter Gamino testified that he had known defendant for about 20 years. On the ev ening of the accident, Gamino was visiting California and staying at defe ndant’s house near Woodside Road. At around 6:00 p.m. Gamino and defendant had a couple of cocktails before dinner. About an hour later, they
ate dinner and finished in half an hour. Afte r dinner, they drove in defendant’s Mercedes to defendant’s son’s house in order to pi ck up a Toyota Camry. After retrieving the Toyota, they left. Defendant drove his Me rcedes and Gamino drove the Toyota. Gamino
followed defendant onto Woodside Road. Gamino was driving at about 40 miles per hour and about 200 yard s behind defendant when he observ ed “dust and dirt[] all over the place,” indicating that a collision had occurred. He made a U-tu rn and circled back to the
collision scene to check on defendant. De fendant was groaning in pain, and said, “I
didn’t even see it.” Post-Accident Investigation Sergeant Alan Bailey and Officer Josh Price of the Redwood City Police Department were among the first law enforcemen t officers to arrive at the scene of the collision and testified at trial. Sergeant Ba iley arrived at about 8: 30 p.m. and took charge of coordinating the investigation. He obse rved that conditions were dry and it was a “pleasant evening.” Santa Clara Avenue is a two-lane roadway, running east and west, which intersects Woodside Road, a four-l ane roadway running no rth and south.
Defendant’s Mercedes was a considerable di stance north of the Wo odside Road/Santa
Clara Avenue intersection. The Mercedes had sustained major front-end damage, the windshield was cracked, and a couple of tires we re flat. The other ve hicle involved in the collision, a Nissan Maxima, had also sustai ned “major, total damage.” There was
massive intrusion to the Nissan’s left rear passenger door, the entire rear end of the vehicle was “destroyed,” and the front windsh ield, the back window, and the left rear6 passenger window were all shattered. The occupants of the Nissan had been removed from the vehicle by paramedics by the time Bailey arrived. Sergeant Bailey surveyed the scene and tried to figure out how the collision occurred. Based on the damage to the vehicl es, their likely directi on of travel and points of rest in relation to the point of impact, a nd the very large “debris field,” Sergeant Bailey concluded that (1) the Mercedes broadsided the Nissan while the Mercedes was traveling
north on Woodside Road and the Nissan was attempting to make a left hand turn onto Woodside Road from Santa Clara Avenue; and (2) defendant was going “extremely fast,” and was “not even close” to the posted sp eed limit of 35 miles per hour when his
Mercedes collided w ith the Nissan. Accident Reconstruction Investigat ion and Expert Testimony At Trial Redwood City Police Motor O fficer Janine O’Gorman, the lead traffic investigator for the accident, testified in the prosecution’s case-in-chief. She arrived at the scene at 9:30 p.m. She first walked around the peri meter of the large debris field and made a visual inspection of the vehicles involved in the collision in order to establish a reference point and map out the scene. She also obs erved a gouge mark on the roadway and yaw 3 and tire friction marks. Yaw marks began at the point of impact and led straight to
defendant’s Mercedes. Based on the gouge mark and the point at which the yaw and tire friction marks began, O’Gorman determined the point of impact was at the intersection of
Woodside Road and Santa Clara Avenue. O’ Gorman determined th at the distance from the point of impact to the Mercedes was 239.9 feet, and that the Nissan came to rest about 60 feet from the point of impact. There wa s no evidence of pre-braking tire friction
marks consistent with the Me rcedes’ anti-lock braking system, indicating that defendant did not apply the brakes before the collision. On cross-examination, O’Go rman testified that under California’s basic speed law a driver must drive at a speed that is safe under the conditions. She regularly patrolled

3 O’Gorman explained that a yaw mark is one made by a tire when the tire is not turning in the direction in wh ich the vehicle is moving.7 the stretch of Woodside Road where the collision occurred. On that stretch, drivers usually exceeded the po sted speed limit of 35 miles per hour at night when traffic was extremely light. Using a radar gun, O’Gorm an clocked the average night time driving speed at 40 miles per hour. Police deemed th at speeds of 50 miles per hour and above
were unsafe on that stretch of Woodside Road. Officer Jincy Pace, a traffic accident investigator with the San Jose Police Department, testified for th e prosecution as an expert in the area of collision
reconstruction. Base d on her review of photos of th e collision scene, O’Gorman’s diagram mapping the scene, and forensic ma pping of the crush-depth on the vehicles, Officer Pace concluded that the operation of defendant’s Mercedes at a speed unsafe for conditions was the primary factor in the collision. To determine the speed of the Mercedes at the point of impact, Officer Pace used a
method known as conservation of linear mome ntum. Using this me thodology, Officer Pace first calculated the post-impact speed of the Mercedes and then applied what she considered a “ludicrous[ly]” low drag factor of 0.3 (the equi valent of slamming brakes on in snow), to account for the fact that the Merced es was spinning post-impact. 4 Officer Pace opined that defendant’s post-impact spee d was 47 miles per hour using “a low drag factor.” If she applied a drag factor of 0.65 , more typical for dry pavement, her estimate of defendant’s post-impact speed would have been 69 miles per hour. Using the lower post-impact speed estimate of 47 miles per hour, Officer Pace opined that the speed of defendant’s Mercedes at impact (pre-impact speed) was 67 miles per hour. She estimated that the Nissan’s pre-impact speed was 12 miles per hour. The defense relied on the testimony of Chri stopher Kauderer, an expert in accident reconstruction, to counter the opi nions of Officer Pace. Kauder er testified that he was not permitted to do any destructive testing or examination of de fendant’s Mercedes, i.e., not allowed to take anything apart. As a c onsequence, Kauderer was unable to conduct a

4 A drag factor of 1.0 is the equivalent of driving through sand, a drag factor of 0.1 is the equivalent of driving on ice, and th e “normal” drag factor used for an asphalt surface is 0.7-0.8.8 mechanical inspection of the ve hicle’s three major systems, br aking, throttle and steering, to see if there was any pre-existing mechanic al condition and to document any effects of the collision on those systems. To determine the speed of the Mercedes at the point of impact, Kauderer opted not to use the wholesale “drag factor” analysis employed by Officer Pace because assigning a drag factor to the Mercedes wa s, in his opinion, too speculativ e. The drag factor for the
Mercedes was “unknown” beca use there were too many incalculable variables; in particular post-impact driver input, such as whether defendant had his “foot on the accelerator,” steered or braked post-impact. Instead, Kauder er used the principle of
conservation of momentum. 5 Employing this methodology, Kauderer opined that the Mercedes was traveling at 49 to 52 miles per hour and the Nissan was traveling at 7 to 9 miles per hour at impact. Based on his examin ation of the scene and the vehicles, human factors in play, as well as forensic mapping and his conservation of momentum analysis, Kauderer opined the primary collision factor was that the driver of the Nissan entered into the roadway and violated the right of wa y of the driver of the Mercedes, leaving the
driver of the Mercedes insuffici ent reaction time to brake. In rebuttal, the prosecution called San Jose Police Officer David Johnson as an expert in accident reconstructi on because Officer Pa ce was unavailable to testify. Officer Johnson conducted a visual inspection of the Mercedes and observed that the vehicle’s front left tire would prevent any post-impact steering by th e driver and increase the Mercedes’ drag factor. He also disagreed with Kauderer’s assumption that the vehicles

5 The conservation of momentum principl e operates on the assumption that the momentum of the vehicles going into the co llision has to equal the momentum of the vehicles coming out of the collision. Using a drag factor range for the Nissan that was similar to the range used by the prosecution’ s expert, Kauderer applied that range to the Nissan’s known distance of travel after impact (about 68 feet) to arrive at an estimate of the Nissan’s post-impact speed of 27 to 29 miles per hour. Next, Kauderer assumed that both vehicles reached a comm on velocity during the collis ion and assigned a separation velocity (post-impact speed) of 27 to 29 miles per hour to the Mercedes also. Having determined that the post-impac t speed of both vehicles, Kaud erer examined the pre- and post-impact departure angles and the pre-impa ct approach angles, of both vehicles, to arrive at the speed at impact.9 reached a common separation velocity and op ined that a 29 miles- per-hour post-impact speed for the Mercedes was inconsistent with the distance the vehicle traveled after impact. Finally, Officer Johnson opined that the Mercedes’ fuel pump would have shut off on impact.

DISCUSSION
I. Consciousness of Guilt Evidence
Defendant contends that the testimony of Sergeant Bailey and Officer Price regarding defendant’s failure to inquire abou t the welfare of the occupants of the Nissan was erroneously introduced as substantive ev idence of guilt in vi olation of his Fifth Amendment privilege against self-incrimina tion, and his Fourt eenth Amendment due process right to a fair trial, and that th e error was not harmless beyond a reasonable doubt. We agree.
The record demonstrates that defendant was placed under arrest when the police transported him from the collision scene in a patrol car to the police station at 9:48 p.m. About 20 minutes after arriving at the polic e station and before reading defendant his
Miranda rights, the police requested but defenda nt declined to gi ve a tape-recorded statement. In lieu of a taped statement, th e police arranged for two officers to witness defendant’s statement. However, after speak ing with his counsel by telephone, defendant
told the officers that he woul d not give any statement in th e absence of counsel. Officer
Price then had defendant take a series of field sobriety tests (FSTs) modified to accommodate his injured ankle. Based on the results of the FSTs, Officer Price
concluded defendant was under the influence of alcohol at the time of the collision. Officer Price handcuffed defendant, placed him under arrest for driving under the influence, and read him his Miranda rights. Defendant said he would not make a

statement. In support of his argument that the prosecutor erred in eliciting testimony in
violation of his constitutional ri ght to remain silent, defendant identifies several occasions during trial when police officers testified he did not inquire about the welfare of the occupants of the Nissan. To resolve this issu e, we need recount on ly two questions posed10 by the prosecutor and responses given by Officer Price and Se rgeant Bailey. At the end of the prosecutor’s direct ex amination of Officer Price, the prosecutor asked whether, during Price’s contact with defendant from ab out 8:20 p.m. to approximately 11:30 p.m. on the evening in question, the defendant ever asked him “about the condition of the occupants of the Nissan.” 6 Price answered, “No.” At the end of the prosecutor’s direct examination of Sergeant Bailey, the prosecuto r also elicited a similar response from him when he was asked, “So, during any of this time [prior to de fendant’s arrest at the police station], did the defendant ever ask you ab out the occupants of the other vehicle?” 7 Bailey replied, “No, he did not.” We conclude, as do the parties, that during the post-arrest pre- Miranda time frame, defendant unambiguously invoked his ri ght to remain silent when he told the police that he would not make any statement in the absence of counsel. After he was read
his Miranda rights, defendant again unambiguously invoked his right to remain silent when he told the police he would not make a statement. Because the prosecutor’s two questions were not sufficiently fo cused on the period exclusively before defendant unambiguously invoked his right to remain silent (post-arrest, pre- Miranda and postMiranda ), the admission of the testimony constitute s error in violation of defendant’s
federal constitutional Fifth Amendmen t right to remain silent (see Salinas v. Texas (2013) 570 U.S. __, ___ [186 L.Ed.2d 376, 133 S. Ct. 2174, 2178] (plur. opn. of Alito, J.); Tom II, supra , 59 Cal.4th at pp. 1225, 1235-1236) a nd his Fourteenth Amendment due process right to a fair trial (see Doyle v. Ohio (1976) 426 U.S. 610, 619 ( Doyle ); People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118 ( Coffman and Marlow )). 8

6 The court overruled defense counsel’s obj ection to the question on the ground of relevancy.

7 The court overruled defense counsel’s obj ection to the question on the ground of relevancy after the prosecutor indicated sh e was seeking to elicit testimony showing defendant’s “[c]onsciousness of guilt.”

8 In light our determinati on, we do not need to addr ess and we express no opinion on whether during the post-arrest pre- Miranda time frame defendant unambiguously11 Nonetheless, the erroneous introduction of evidence of defendant’s silence is trial error subject to the harmless error analysis standards of Chapman v. California (1967) 386 U.S. 18 ( Chapman ). (See Arizona v. Fulminante (1991) 499 U.S. 279, 310.) The Chapman standard “ ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.] ‘To say that an error di d not contribute to the en suing verdict is . . . to find that error unimportant in relation to everything else the ju ry considered on the issue in question, as revealed in the record.’ [Citation.] Thus , the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the
issue is ‘whether the . . . ve rdict actually rendered in this trial was surely unattributable to the error.’ ” ( People v. Neal (2003) 31 Cal.4th 63, 86 ( Neal ).) On this record, the People have not shown that the verd ict rendered in this case was “surely unattributable to the error.” ( Neal, supra , 31 Cal.4th at p. 86.) “[D]efendant was not apprehende d by the police in the course of committing the crime; neither were
there ‘numerous’—or indeed any — ‘disinterested reliable eyewitnesses to the crime whose testimony [was] confirmed by a wealth of uncontroverted physical evidence.’ ” ( Id . at p. 87.) Indeed, the evid ence against defendant in th is case was essentially in equipoise. For example, a ke y issue at trial was determin ing the pre-impact speed of defendant’s vehicle. There was no dispute de fendant was traveling faster than the posted speed limit of 35 miles per ho ur on Woodside Road. The question for the jury, however, was whether defendant acted with gross negligen ce in driving over th e posted speed limit, to wit, whether his conduct displayed an “I don’t care attitude” 9 and was so reckless that it created a high risk of death or great bodily injury. Both sides presented the testimony
of accident reconstruction e xperts, and each adopted a different methodology in

invoked his right to remain silent prior to the time that he expre ssly told the police he would not make any statement in the absence of counsel.

9 The jury was instructed that “Gross negligence is the exercise of so slight a degree of care as to exhibit a conscious indiffere nce or ‘I don’t care’ attitude concerning the ultimate consequences of one’s conduct.”12 calculating defendant’s speed at impact. The prosecution’s evidence established defendant’s speed at impact was, at mini mum, 67 miles per hour, and possibly much higher. However defendant’s expert opined de fendant’s speed at impact was between 49 and 52 miles per hour, on a stretch of road where drivers routinel y exceed the posted speed limit and police deem speeds of up to 50 miles per hour safe under certain
conditions. Thus the resolution of defendant’s guilt hinged on the jury’s resolution of the conflicting expert testimony. Without corr oboration by eyewitnesse s and no physical evidence, mechanical or reco rded, which conclusively dete rmined defendant’s speed at impact, the jury’s assessment of defendant’s conduct in the aftermath of the collision was very likely an important and even determinativ e factor in its verdict. And, thus, the prosecutor’s entreaty to the jury to consider defendant’s sile nce as evidence of his guilt took on added significance. During closing argument, the prosecutor vigorously pressed the jury to find defendant’s speed at impact was reliably determ ined by its expert. The prosecutor argued that defendant’s speed, at the time of impact, demonstrated the “I don’t care” attitude consistent with establishing gross negligence. After asser ting that defendant “barrel[ed] down Woodside at double the speed limit,” th e prosecutor rhetorically stated, “Why did
he not . . . at least slow down? . . . Because he was grossly negligent. He was driving down that night . . . without a care of what was going to happen. I don’t care is the attitude that he had.” The pr osecutor explained to the jury that it could not consider defendant’s failure to testify, but “should and can absolutely consider [ ] how he acted the night of the collision. And th ere’s so much evidence about this. And all of it points to one thing; his consciousness of his own guilt.” Pressing this theme, the prosecutor added: “The next one I think is partic ularly offensive, he never, ever asked, hey, how are the people in the other car doing? Not once. . . . Now you step on some body’s toe . . . what is your first thing out of your mouth? Whoops . I’m sorry. I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession, but simply as an expression of his regret. Look, I’m sorry th ose people were hurt. [¶] Not once. Do you know how many officers he had contact with that evening? Not a single one said that,13 hey, the defendant asked me ab out how those people were doing. Why is that? Because he knew he had done a very, ve ry, very bad thing, and he wa s scared. [¶] . . . And he was obsessed with only one thing, that is, saving his own skin.” Given the circumstances—an emotionally charged case, involving the death of one child and serious injury to another, and hinging on competing theories of acciden t reconstruction yieldi ng widely different estimates of defendant’s speed at the point of impact—the prosecutor’s argument urging the jury to consider defendant ’s failure to ask about the we lfare of the occupants of the other car as substantive evidence of his guilt was highly prejudicia l. We reject the Attorney General’s assertion that the prosecut or’s references to defendant’s silence after he unambiguously invoked his ri ght to remain silent were br ief and inconsequential. The jurors were asked to draw a speculative inference of gross negligence based on defendant’s failure to inquire about the welfare of the occupants of the other car. (See People v. Babbitt (1988) 45 Cal.3d 660, 681-682 [evi dence allowing only speculative
inferences is irrelevant and inadmissible].) Indeed, the pr osecutor went further by in essence asking “the jury to speculate about

─ and possibly base a verdict upon

─ ‘evidence’ never presented at trial” - defe ndant’s silence in the presence of numerous
officers that he had contact w ith that evening in addition to Sergeant Bailey and Officer Price. ( People v. Bolton (1979) 23 Cal.3d 208, 212.) We also see no merit to the Attorney General’s additional arguments that the
erroneous admission of evidence of defendant’s silence was nonprejudicial error. The Attorney General asks us to consider that defendant failed to preserve the error for our review. However, defendant filed a pre-tria l motion in limine to exclude statements
obtained without a valid Miranda waiver and while he was under de facto arrest at the collision scene. This issue is closely related to defendant’s claim on appeal that evidence
of his silence while under de facto arrest and pre- Miranda violated his right to remain
silent under the Fifth Amendmen t. Additionally, defendant filed a pre-trial motion in
limine to exclude all st atements elicited post- Miranda . In all events, Supreme Court authority allows this court to reach this erro r, where, as here, defense counsel’s failure to make a sufficient objection constitutes ine ffective assistance of counsel. (See People v.14 Centeno (2014) 60 Cal.4th 659, 675 [court revers ed judgment on direct appeal based on finding that defense counsel’s failure to obje ct to prosecutor’s prejudicial closing remarks constituted ineffective assistance of counsel]. ) As defendant notes, and the Attorney General does not dispute, there is no possible strategic decision that would support trial counsel’s failure to object to the admission of evidence elicited in violation of defendant’s constitutional rights.
The fact that there was no evidence before the jury that defe ndant had invoked his right to remain silent, as the Attorney Ge neral notes, is precis ely why the proffered evidence, which allowed the jury to consider defendant’s silence, is “problematic.” ( U.S.
v. Waller (3d Cir. 2011) 654 F.3d 430, 438.) Alth ough the inference of guilt arising from defendant’s failure to inquir e about the welfare of occupants of the other car may be “ ‘natural and irresistible’ to a jury” ( ibid ), the trial court’s overruling of defense counsel’s objections gave credence to th e testimony and allowed the jury to use
defendant’s silence as substa ntive evidence agains t him in violation of his constitutional right to remain silent. The additional assertion that the pr osecutor’s questions largely focused on the period before de fendant invoked his right to re main silent fares no better.
There is no established “t hreshold quantity of improper questioning to qualify as a constitutional violation.” ( U.S. v. Shannon (3d Cir. 2014) 766 F.3d 346, 359 ( Shannon ).)
In Shannon , the prosecutor’s questioning of Sha nnon on cross-examination about his “pre-arrest and post-arrest silence received roughly the same degree of inquiry.” ( Ibid .) Nonetheless, the Third Circuit found that “[e] ven if the government had, in fact, asked pages of questions regarding Shannon’s pre-arrest silence, the problem remains that it also asked inappropriate questions regard ing Shannon’s post-arrest silence.” ( Ibid .) The court there found that “the two questions as ked by the government regarding Shannon’s post-arrest silence violated his Fifth Ame ndment right to silence, as explained in Doyle .” 10 ( Shannon, supra, at p. 359.) So, too, in this case, the prosecutor posed one

10 In Doyle, supra, 426 U.S. 610, the United States Supreme Court held “that ‘the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Pr ocess Clause of the Fourteenth15 question to Officer Price elic iting testimony that while at the collision scene defendant asked if he could go home but did not then in quire about the welfare of the occupants of the other vehicle. Although defense counsel lodged no objection to the testimony of defendant’s pre-arrest silence, and even a ssuming that evidence was properly before the jury, the prosecutor also asked two improper questions, one posed to Sergeant Bailey and one posed to Officer Price, which elicited testimony regarding defendant’s silence after he had unambiguously invoked his right to remain silent in violation of his Fifth Amendment right against self-incrimination. Accordingly, we conclude that on this record the verdict cannot stand as the
erroneous admission of the evidence of defend ant’s silence in violation of his Fifth Amendment right to remain silent was not harmless beyond a reasonable doubt. (Compare People v. Esqueda (1993) 17 Cal.App. 4th 1450, 1487 [erroneous admission of defendant’s statements not harmless beyond a reasonable doubt where other evidence of
defendant’s involvement in killing was mainly circumstan tial and prosecutor heavily
relied on defendant’s statements to undermine the defense case] with People v. Lewis (2008) 43 Cal.4th 415, 465-466 [any error in admission of co-defendant’s redacted statement at joint trial was harmless beyond a reasonable doubt in light of “powerful evidence supporting the jury’s verdicts . . . and the prosecutor’s minimal use of [disputed] statement in the relevant porti ons of his closing argument”].)
II. Other Issues
Given our conclusion that th e violation of defendant’s constitutional due process right to a fair trial requires reversal, we need not resolve the other issues raised on appeal, with one exception. For the gu idance of the parties in the ev ent the issue is raised in a retrial (see People v. Neely (1993) 6 Cal.4th 8 77, 896), we shall address defendant’s

Amendment.’ ” ( Id . at p. 619, fn. omitted.) In Coffman v. Marlow, supra , 34 Cal.4th 1, our Supreme Court held that Doyle error is committed when s ilence is used against a defendant “ by means of the prosecutor’s exam ination of an interrogating detective even before the defendant has had the o pportunity to take the stand.” ( Id. at p. 118.)16 contention that the jury inst ructions on gross vehicula r manslaughter were legally
deficient. The jury found defendant guilty of gross vehicular manslaughter (GVM) 11 under instructions which identified two predicate offenses—violation of the basic speed law (Veh. Code, § 22350) and reckless driving (Veh. Code, § 23103) 12 — at least one of

11 The jury was instructed using langua ge in CALCRIM No. 592 in the following manner, in pertinent part: “Gross vehicular manslaughter is a lesser crime than gross vehicular manslaughter while intoxicated. [¶] To prove that the defendant is guilty of gross vehicular manslaughter, the People must prove that: [¶] 1. The defendant drove a vehicle; [¶] 2. While driving that vehicl e, the defendant committed a misdemeanor, or infraction; [¶] 3. The defendant committed the misdemeanor, or infraction with gross negligence; [¶] AND [¶] 4. The defendant’s gro ssly negligent conduct caused the death of another person. [¶] The People allege that the defendant committed the following misdemeanor and infraction: [reckless] drivi ng and speeding. [¶] In structions 2200 and 595 tell you what the People must prove in order to prove that the defendant committed [reckless] driving and speeding. [¶] Gross ne gligence involves mo re than ordinary carelessness, inattention, or mistake in ju dgment. A person acts with gross negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable pe rson would have known that acting in that way would create such a risk. [¶] In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or he r act amounts to disregard for human life or indifference to the consequences of that act.” The jury was fu rther instructed that it could not find defendant guilty unless “all of you ag ree that the People ha ve proved that the defendant committed at least one of the alle ged misdemeanor, or infraction and you all agree on which misdemeanor, or infrac tion the defendant committed.”

12 The jury was instructed using language in CALCRIM No. 2200 in the following manner, in pertinent part: The People allege that the defendant committed the act of reckless driving in violation of Vehicle Code section 231 03. [¶] To prove that the defendant is guilty of this crim e, the People must prove that: [¶] 1. The defendant drove a vehicle on a highway; [¶] AND [¶] 2. The de fendant intentionally drove with wanton disregard for the safety of persons or proper ty. [¶] A person acts with wanton disregard for safety when (1) he [or she] is aware that his or her actions present a substantial and unjustifiable risk of harm, and (2) he [or she] intentionally ignores that risk. The person does not, however, have to intend to cause dama ge. [¶] If you conclude that the defendant drove faster than the legal speed limit, that fact by itsel f does not establish that the defendant drove with wanton disregard for sa fety. You may consider the defendant’s speed, along with all the surrounding circum stances, in deciding whether the defendant drove with wanton disregard for safety.”17 which the jury had to find be yond a reasonable doubt. Defenda nt asserts the standard of gross negligence defined in the GVM instruc tion is legally indistinguishable from the “wanton disregard for safety” standard defined in the reck less driving instruction. Therefore, according to defend ant, the GVM instruction elim inates the requirement that the prosecution prove the predicat e offense of reckless driving. 13 We disagree.
Defendant’s contention fails because it a ssumes that “gross neg ligence” as defined
in the GMV instruction is co extensive with the “wanton di sregard for the safety of persons or property” as defined in the reck less driving instruction. However, as the instructions make clear, “gro ss negligence” is judged under an objective, reasonable person standard. ( People v. Watson (1981) 30 Cal.3d 290 296 [“[a] finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s

13 Defendant relies on People v. Soledad (1987) 190 Cal.App.3d 74 ( Soledad ) but the case has no application here. In Soledad , defendant was convicted of gross vehicular manslaughter while intoxicated, pursuant to Penal Code section 192, subdivision (c)(3) (now defined in Penal Code section 191.5). Penal Code section 192 then defined the offense as driving a vehicle under the influe nce of alcohol or dr ugs [in violation of section 23152 or 23153 of th e Vehicle Code] and required as elements “ ‘[d]riving a vehicle in violation of [Vehicle Code] sec tion 23152 [influence of alcohol or drugs] or 23153 [influence of alcohol and drugs causing bodily injury to person other than driver] of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicl e in violation of sec tion 23152 or 23153 of the Vehicle Code and in the commission of a la wful act which might produce death, in an unlawful manner, and with gross negligence.’ ” ( Soledad, supra , at p. 80.) The Soledad court noted that to prove the offense the pr osecution had to show defendant (1) drove a vehicle in the commission of an “unlawful act” not amounting to a felony with gross negligence and (2) drove the vehicle in violation of Vehicle Code section 23152 or 23153. ( Soledad , supra , at pp. 81-82.) Reversing defe ndant’s conviction on the ground of instructional error, the Soledad court concluded “the jury was neither instructed nor advised at anytime that it must make a finding on the unlawful act element of vehicular manslaughter,” in addition to finding defendan t drove the vehicle in violation of Vehicle Code section 23152 or 23153. ( Soledad, supra , at p. 83.) No such omission occurred here. The jury was instruct ed that to prove defendant guilty of gross vehicular manslaughter, the prosecution had to prov e defendant drove the vehicle in the commission of a misdemeanor or infraction (i.e., an unlawful act not amounting to a felony) with gross negligence. Thus, the instruction was free of the defect identified in Soledad because the jury was requ ired to make a finding on the unlawful act element of the offense.18 position would have been aware of the risk involved, then defendant is presumed to have had such an awareness”].) On the other hand , to establish the mental state required to prove reckless driving, the evid ence must establish that de fendant acted with a “wanton disregard for the safety of persons or property” ( People v. Schumacher (1961) 194 Cal.App.2d 335, 339), where “wantonness” incl udes the elements of consciousness of one’s conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences. ( Id . at pp. 338-340; see also People v. Dewey (1996) 42 Cal.App.4th 216, 221.) Thus, under the instructions, if the jurors concluded, using the reasonabl e person standard, that the defendant acted with gross negligence, they were require d to make the additional findi ng that defendant acted with the requisite, subjective mental state required for reckless driving. Therefore, the GMV instructions did not eliminate the predicate offense element of reckless driving and we reject defendant’s assertion of instructional error.

DISPOSITION
We realize that the conclusion we re ach today will not pr ovide certainty of outcome for any of the parties impacted by th e tragic vehicular accident which occurred on the evening of February 19, 2007. However, where, as he re, a defendant’s right to a fair trial is prejudiced as a result of a vi olation of his constituti onal rights, our duty is clear - we are required to reverse the convicti on. Accordingly, in the appeal in case No. 124765, the judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opin ion. The petition for a writ of habeas corpus
in case No. A130151 is dismissed as moot.

_

____________ ____________ Jenkins, J.

We concur:19 _____________ ____________ Pollak, Acting P. J.

_____________ ____________ Siggins, J.