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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 Richard Tom, while driving at a 

high rate of speed, broadsided a vehicle driven 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) and Sydney (8) were riding in the rear passenger seat. 

Sydney died as a result of injuries sustained in the collision. Kendall survived, but 

sustained serious injuries. As a result of the collision, defendant was 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 higher causing harm to another (Veh. Code, 

§ 23153, subd. (b)). Defendant pleaded not guilty to all charges. After a lengthy trial, the 
2

jury acquitted defendant of all alcohol-related charges but returned a guilty verdict on 

gross vehicular manslaughter as a lesser included offense of gross vehicular 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 the personal infliction of great bodily injury 

on Kendall as a sentence enhancement (Pen. Code, § 12022.7). In addition, the court 

ordered defendant to pay restitution in the sum of $147,860.82. 

 In case No. A124765, defendant appeals the judgment imposed following his jurytrial conviction. He asserts multiple grounds for reversal, including deprivation of 

constitutional rights, prosecutorial misconduct, improper admission of opinion testimony, 

prosecutorial failure to disclose exculpatory evidence, ineffective assistance of counsel, 

and sentencing error. In case No. A130151, defendant petitions for a writ of habeas 

corpus on the grounds of ineffective assistance of counsel and prosecutorial misconduct. 

 In our earlier opinion, we concluded that the prosecution had violated defendant’s 

Fifth Amendment privilege against self-incrimination 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 reversed the judgment and remanded the matter 

for further proceedings consistent with our opinion and we dismissed the writ petition as 

moot. (Ibid.) Our Supreme Court granted review, and, in a 4-3 decision, reversed our 

decision and held that, as a matter of first 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 question of fact, whether defendant had 

unambiguously invoked his Fifth Amendment privilege, the Supreme Court remanded the 

matter with directions that we consider the issue 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-incrimination and his 

Fourteenth Amendment due process right to a fair trial. We further conclude that the 

erroneous admission of evidence was not harmless beyond a reasonable doubt. 

Accordingly, on the appeal in case No. A124765, we reverse the judgment and remand 

the matter for further proceedings consistent with 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 testimony by several police officers who 

described the scene at the collision, as well as the events following the collision which 

culminated in defendant’s arrest. Other prosecution witnesses included Loraine Wong 

and Peter Gamino, a retired police officer and friend of defendant. Gamino was with 

defendant during the evening the accident occurred and was driving another vehicle 

behind defendant’s vehicle when the collision occurred. There were no third-party 

witnesses to the collision and both sides presented expert testimony regarding the speed 

of defendant’s vehicle at the time of the collision. We recount pertinent trial testimony 

below.1

 

The Accident 

 On the evening of February 19, 2007, Loraine Wong decided to take her 

daughters, Sidney and Kendall (ages eight and ten), to her sister’s house in Sunnyvale for 

an overnight visit. Wong drove a Nissan Maxima automatic sedan that evening. Kendall 

was seated in the rear passenger side of the Nissan and Sidney sat in a booster seat next to 

 

1

 The parties presented expert testimony 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 any of that expert testimony on blood alcohol 

level because defendant was acquitted 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 Woodside Road and Santa Clara Avenue, Wong 

planned to turn left and proceed on Woodside Road to the Southbound I-280 on ramp. 

Wong drove this route to her sister’s home 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 Santa 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 las Pulgas. Wong then looked right and left 

again. Seeing no on-coming vehicles in either 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) side. 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 discovered 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 scene and extracted Wong and her daughters 

from the vehicle. Wong, Sidney, and Kendall were transported 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 death was multiple external and internal injuries caused by 

blunt force trauma. The injuries were consistent with a child restrained in a booster seat 

in a vehicle that was T-boned by a speeding car. 
5

required 30-40 stitches, a broken arm and an injury to her 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 the hospital for a week. 

 Retired San Francisco Police Officer Peter Gamino testified that he had known 

defendant for about 20 years. On the evening of the accident, Gamino was visiting 

California and staying at defendant’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. After dinner, they drove in defendant’s Mercedes 

to defendant’s son’s house in order to pick up a Toyota Camry. After retrieving the 

Toyota, they left. Defendant drove his Mercedes and Gamino drove the Toyota. Gamino 

followed defendant onto Woodside Road. Gamino was driving at about 40 miles per 

hour and about 200 yards behind defendant when he observed “dust and dirt[] all over the 

place,” indicating that a collision had occurred. He made a U-turn and circled back to the 

collision scene to check on defendant. Defendant 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 enforcement officers to arrive at the scene of the 

collision and testified at trial. Sergeant Bailey arrived at about 8:30 p.m. and took charge 

of coordinating the investigation. He observed 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-lane roadway running north and south. 

Defendant’s Mercedes was a considerable distance north of the Woodside Road/Santa 

Clara Avenue intersection. The Mercedes had sustained major front-end damage, the 

windshield was cracked, and a couple of tires were flat. The other vehicle involved in the 

collision, a Nissan Maxima, had also sustained “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 windshield, the back window, and the left rear 
6

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 vehicles, their likely direction of travel and points 

of rest in relation to the point of impact, and 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 speed limit of 35 miles per hour when his 

Mercedes collided with the Nissan. 

Accident Reconstruction Investigation and Expert Testimony At Trial 

 Redwood City Police Motor Officer 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 perimeter 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 observed a gouge mark on the roadway and yaw3

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 that 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 was no evidence of pre-braking tire friction 

marks consistent with the Mercedes’ anti-lock braking system, indicating that defendant 

did not apply the brakes before the collision. 

 On cross-examination, O’Gorman 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 which the vehicle is moving. 
7

the stretch of Woodside Road where the collision occurred. On that stretch, drivers 

usually exceeded the posted speed limit of 35 miles per hour at night when traffic was 

extremely light. Using a radar gun, O’Gorman clocked the average night time driving 

speed at 40 miles per hour. Police deemed that 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 the prosecution as an expert in the area of collision 

reconstruction. Based on her review of photos of the collision scene, O’Gorman’s 

diagram mapping the scene, and forensic mapping 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 momentum. Using this methodology, 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 equivalent of slamming brakes on 

in snow), to account for the fact that the Mercedes was spinning post-impact.4

 Officer 

Pace opined that defendant’s post-impact speed 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 Christopher Kauderer, an expert in accident 

reconstruction, to counter the opinions of Officer Pace. Kauderer testified that he was not 

permitted to do any destructive testing or examination of defendant’s Mercedes, i.e., not 

allowed to take anything apart. As a consequence, 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 the “normal” drag factor used for an asphalt 

surface is 0.7-0.8. 
8

mechanical inspection of the vehicle’s three major systems, braking, throttle and steering, 

to see if there was any pre-existing mechanical 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 was, in his opinion, too speculative. The drag factor for the 

Mercedes was “unknown” because 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, Kauderer 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 examination 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 way of the driver of the Mercedes, leaving the 

driver of the Mercedes insufficient reaction time to brake. 

 In rebuttal, the prosecution called San Jose Police Officer David Johnson as an 

expert in accident reconstruction because Officer Pace 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 the driver and increase the 

Mercedes’ drag factor. He also disagreed with Kauderer’s assumption that the vehicles 

 

5

 The conservation of momentum principle operates on the assumption that the 

momentum of the vehicles going into the collision 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 common velocity during the collision and assigned a separation 

velocity (post-impact speed) of 27 to 29 miles per hour to the Mercedes also. Having 

determined that the post-impact speed of both vehicles, Kauderer examined the pre- and 

post-impact departure angles and the pre-impact approach angles, of both vehicles, to 

arrive at the speed at impact. 
9

reached a common separation velocity and opined 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 about the welfare of the occupants of the Nissan 

was erroneously introduced as substantive evidence of guilt in violation of his Fifth 

Amendment privilege against self-incrimination, and his Fourteenth Amendment due 

process right to a fair trial, and that the 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 police station and before reading defendant his 

Miranda rights, the police requested but defendant declined to give a tape-recorded 

statement. In lieu of a taped statement, the police arranged for two officers to witness 

defendant’s statement. However, after speaking with his counsel by telephone, defendant 

told the officers that he would not give any statement in the 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 right 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 issue, we need recount only two questions posed 
10

by the prosecutor and responses given by Officer Price and Sergeant Bailey. At the end 

of the prosecutor’s direct examination of Officer Price, the prosecutor asked whether, 

during Price’s contact with defendant from about 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 prosecutor also elicited a similar response from him 

when he was asked, “So, during any of this time [prior to defendant’s arrest at the police 

station], did the defendant ever ask you about 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 right 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 focused on the period exclusively before defendant 

unambiguously invoked his right to remain silent (post-arrest, pre-Miranda and postMiranda), the admission of the testimony constitutes error in violation of defendant’s 

federal constitutional Fifth Amendment 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) and 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 objection to the question on the ground of 

relevancy. 

7

 The court overruled defense counsel’s objection to the question on the ground of 

relevancy after the prosecutor indicated she was seeking to elicit testimony showing 

defendant’s “[c]onsciousness of guilt.” 

8

 In light our determination, we do not need to address and we express no opinion 

on whether during the post-arrest pre-Miranda time frame defendant unambiguously 
11

 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 did not contribute to the ensuing verdict is . . . 

to find that error unimportant in relation to everything else the jury 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 . . . verdict 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 verdict rendered in this case 

was “surely unattributable to the error.” (Neal, supra, 31 Cal.4th at p. 86.) “[D]efendant 

was not apprehended 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 evidence against defendant in this case was essentially in 

equipoise. For example, a key issue at trial was determining the pre-impact speed of 

defendant’s vehicle. There was no dispute defendant was traveling faster than the posted 

speed limit of 35 miles per hour on Woodside Road. The question for the jury, however, 

was whether defendant acted with gross negligence in driving over the 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 experts, and each adopted a different methodology in 

 

invoked his right to remain silent prior to the time that he expressly 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 indifference 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 minimum, 67 miles per hour, and possibly much 

higher. However defendant’s expert opined defendant’s speed at impact was between 49 

and 52 miles per hour, on a stretch of road where drivers routinely 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 corroboration by eyewitnesses and no physical 

evidence, mechanical or recorded, which conclusively determined 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 determinative factor in its verdict. And, thus, the 

prosecutor’s entreaty to the jury to consider defendant’s silence 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 determined 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 asserting that defendant “barrel[ed] 

down Woodside at double the speed limit,” the 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 prosecutor 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 there’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 particularly offensive, he never, ever asked, hey, how are the 

people in the other car doing? Not once. . . . Now you step on somebody’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 those 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 about how those people were doing. Why is that? Because 

he knew he had done a very, very, very bad thing, and he was 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 accident reconstruction yielding 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 welfare of the occupants of the 

other car as substantive evidence of his guilt was highly prejudicial. We reject the 

Attorney General’s assertion that the prosecutor’s references to defendant’s silence after 

he unambiguously invoked his right to remain silent were brief 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 [evidence allowing only speculative 

inferences is irrelevant and inadmissible].) Indeed, the prosecutor went further by in 

essence asking “the jury to speculate about ─ and possibly base a verdict upon ─

‘evidence’ never presented at trial” - defendant’s silence in the presence of numerous 

officers that he had contact with 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-trial 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 Amendment. Additionally, defendant filed a pre-trial motion in 

limine to exclude all statements elicited post-Miranda. In all events, Supreme Court 

authority allows this court to reach this error, where, as here, defense counsel’s failure to 

make a sufficient objection constitutes ineffective assistance of counsel. (See People v. 
14

Centeno (2014) 60 Cal.4th 659, 675 [court reversed judgment on direct appeal based on 

finding that defense counsel’s failure to object 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 defendant had invoked his 

right to remain silent, as the Attorney General notes, is precisely 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.) Although the inference of guilt arising from 

defendant’s failure to inquire 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 the testimony and allowed the jury to use 

defendant’s silence as substantive evidence against him in violation of his constitutional 

right to remain silent. The additional assertion that the prosecutor’s questions largely 

focused on the period before defendant invoked his right to remain silent fares no better. 

There is no established “threshold 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 Shannon 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 regarding Shannon’s post-arrest silence.” (Ibid.) The 

court there found that “the two questions asked by the government regarding Shannon’s 

post-arrest silence violated his Fifth Amendment 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 Process Clause of the Fourteenth 
15

question to Officer Price eliciting testimony that while at the collision scene defendant 

asked if he could go home but did not then inquire 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 assuming 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 defendant’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 circumstantial 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 portions of his closing argument”].) 

II. Other Issues 

Given our conclusion that the 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 guidance of the parties in the event the issue is raised in a 

retrial (see People v. Neely (1993) 6 Cal.4th 877, 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 silence is used against a 

defendant “ by means of the prosecutor’s examination of an interrogating detective even 

before the defendant has had the opportunity to take the stand.” (Id. at p. 118.) 
16

contention that the jury instructions on gross vehicular 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 language 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 vehicle, the defendant committed a misdemeanor, or 

infraction; [¶] 3. The defendant committed the misdemeanor, or infraction with gross 

negligence; [¶] AND [¶] 4. The defendant’s grossly negligent conduct caused the death of 

another person. [¶] The People allege that the defendant committed the following 

misdemeanor and infraction: [reckless] driving and speeding. [¶] Instructions 2200 and 

595 tell you what the People must prove in order to prove that the defendant committed 

[reckless] driving and speeding. [¶] Gross negligence involves more than ordinary 

carelessness, inattention, or mistake in judgment. 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 person 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 her act amounts to disregard for human life or 

indifference to the consequences of that act.” The jury was further instructed that it could 

not find defendant guilty unless “all of you agree that the People have proved that the 

defendant committed at least one of the alleged misdemeanor, or infraction and you all 

agree on which misdemeanor, or infraction 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 23103. [¶] To prove that the 

defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant drove a 

vehicle on a highway; [¶] AND [¶] 2. The defendant intentionally drove with wanton 

disregard for the safety of persons or property. [¶] 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 damage. [¶] If you conclude that the defendant 

drove faster than the legal speed limit, that fact by itself does not establish that the 

defendant drove with wanton disregard for safety. You may consider the defendant’s 

speed, along with all the surrounding circumstances, in deciding whether the defendant 

drove with wanton disregard for safety.” 
17

which the jury had to find beyond a reasonable doubt. Defendant asserts the standard of 

gross negligence defined in the GVM instruction is legally indistinguishable from the 

“wanton disregard for safety” standard defined in the reckless driving instruction. 

Therefore, according to defendant, the GVM instruction eliminates the requirement that 

the prosecution prove the predicate offense of reckless driving.13 We disagree. 

 Defendant’s contention fails because it assumes that “gross negligence” as defined 

in the GMV instruction is coextensive with the “wanton disregard for the safety of 

persons or property” as defined in the reckless driving instruction. However, as the 

instructions make clear, “gross 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 influence of alcohol or drugs [in violation of 

section 23152 or 23153 of the Vehicle Code] and required as elements “ ‘[d]riving a 

vehicle in violation of [Vehicle Code] section 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 vehicle in violation of section 23152 or 23153 of 

the Vehicle Code and in the commission of a lawful 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 prosecution 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 defendant’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 defendant 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 instructed that to prove defendant guilty of gross vehicular 

manslaughter, the prosecution had to prove 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 required 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 evidence must establish that defendant acted with a “wanton 

disregard for the safety of persons or property” (People v. Schumacher (1961) 194 

Cal.App.2d 335, 339), where “wantonness” includes 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 reasonable person standard, that the defendant acted with gross 

negligence, they were required to make the additional finding 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 reach today will not provide certainty of 

outcome for any of the parties impacted by the tragic vehicular accident which occurred 

on the evening of February 19, 2007. However, where, as here, a defendant’s right to a 

fair trial is prejudiced as a result of a violation of his constitutional rights, our duty is 

clear - we are required to reverse the conviction. 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 opinion. 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.